Lopez Torres and Judicial Selection in New York: An Argument for Merit-Based Appointment to the State Supreme Court

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I. INTRODUCTION

The New York State Supreme Court is New York's statewide trial court of general jurisdiction. Justices of the state supreme court have been chosen by popular election since that change was effected by the New York Constitution of 1846. (1) With the exception of a brief period between 1912 and 1920, political parties have nominated their candidates for the supreme court using delegate-based conventions. In Lopez Torres v. New York State Board of Elections, the federal courts in New York determined that the state's current statutory embodiment of the judicial nominating convention is unconstitutional, enjoined its further use, and mandated nomination by the direct primary method pending legislative action. (2) The United States Supreme Court, in a brief and unanimous decision, reversed the lower courts, finding no constitutional violation in New York's convention system. (3)

Though the judicial nominating convention has survived the Lopez Torres case, the decisions have revived the perennial question of the best mode of judicial selection in New York. Indeed, in a stinging single-paragraph concurrence, Justice Stevens is sharply critical of New York's process and to some degree the policy of electing judges in general. (4) This Article argues in favor of a constitutional amendment in New York instituting a local merit-based appointment system for state supreme court justices. It reviews the history of judicial selection, particularly that of the state supreme court, since New York's provincial days, and concludes that several enduring and guiding principles regarding the subject can be gleaned from the state's several experiments with different modes. Applying these principles, the Article concludes that the merit-based appointive system is preferable, as partisan and personal politics can never be wholly divorced from judicial selection, but the judicial election campaign and its insidious incidents can.

Part II describes the judicial election and nomination processes for state supreme court justices in New York and details the statutory framework for the current judicial district nominating convention. Part III briefly reviews the Lopez Torres case, including the arguments of the parties and the courts' decisions. Part IV chronicles the history of judicial selection in New York, particularly for the supreme court, and posits several enduring historical principles useful in contemplating the best mode of judicial selection. Part V expounds on these principles, explores the judicial election campaign, and argues in favor of a merit-based appointive system.

II. THE JUDICIAL NOMINATING CONVENTION

Since 1846, New York's Constitution has required that state supreme court justices be chosen by the electors of the judicial district in which they are to serve. (5) To that end, New York is currently divided into twelve judicial districts, each encompassing several of the state's 150 assembly districts. (6) The judicial districts currently contain as few as nine and as many as twenty-four assembly districts. (7)

New York State Supreme Court justices are elected from the judicial districts at the ordinary November general election. (8) A place on the general election ballot can be obtained either by receiving the nomination of a major party (9) at its judicial district nominating convention or by filing an independent nominating petition, which requires 1,500 signatures (4,000 in New York City). (10) In addition, any candidate can have his or her name written-in on the general election ballot. (11)

With the exception of a brief period between 1912 and 1920, political parties in New York have nominated their candidates for the state supreme court using delegate based judicial conventions, with delegates elected at party primary elections or other nominating conventions. The current form of the judicial nominating convention was statutorily enacted in 1921, following several years of a failed experiment with direct primary nominations of supreme court justices. …