I wish to thank Albany Law School, its law review, and Professor Vincent Bonventre for inviting me to this symposium. The school's sponsorship of this program reminds me of a discussion that I had with a law professor. The professor said that a number of law schools would be reluctant to look at state judicial selection because they consider the federal judiciary a more prestigious subject, despite the fact that state courts hear most of our cases and supply the judges with whom we most often interact. (1) I am glad that Albany Law School deemed this subject worthy of its study.
"No subject in American law has drawn as much ink, and sweat, as the debate and fight over which method of selecting judges is least unsatisfactory." (2) I would like to mention to you three of the important pieces of literature in this field. One is Justice in Jeopardy, which is the American Bar Association report published in 2003 on judicial selection reform. (3) The American Bar Association recommends appointive selection of judges as its preferred method of judicial selection. (4) Another is the Association of the Bar of the City of New York's Task Force Report on judicial selection reform, also published in 2003, which likewise recommends appointive selection of judges. (5) A third is Stephen B. Bright and Patrick J. Keenan, Judges and the Politics of Death." Deciding Between the Bill of Rights and the Next Election in Capital Cases, which recommends appointive selection to enable judges to decide impartially on the law without fear of losing their jobs for making unpopular decisions. (6) In particular, the article discusses how elected state court judges often demonstrated their "tough[ness] on crime" through their conduct in capital cases in order to ensure their electability. (7) Judges should not have an incentive to bow to public sentiment--including by penalizing the unpopular, whether in civil or criminal cases--so as to advance or preserve their careers. (8)
Despite such extensive literature supporting appointive selection as opposed to judicial elections, the question of whether appointive selection will take hold in particular places has drawn some pessimism. Professor Roy Schotland of Georgetown University Law Center once commented that appointive selection could not be achieved in certain locations for centuries if the current pace of judicial selection change were to continue. (9) However, Professor Schotland's statement was not categorical, and he recognized changes which might lead to a different perspective on the subject. (10) Others have also stated that appointive selection reform would not be achieved in their lifetime, as if that were an argument. (11) But that is not an argument. That is just a statement or excuse not to seek reform. Obtaining judicial selection reform depends on work to reform the process. (12)
In the 1970s, when judicial selection by appointment came to the New York Court of Appeals, there were doubters as well, and yet it occurred anyway. (13) In New York, the catalyst towards reform consisted of problem elections which upset people who had the power to make a change. (14) One such catalyst was Court of Appeals candidate, and later Judge, Jacob Fuchsberg, a wealthy trial lawyer who was not part of the establishment. In addition, he was never a judge before. (15) He ran against Charles Breitel, a respected Court of Appeals judge, but lost. Judge Fuchsberg ran again and this time defeated appellate judge Harold Stevens. But Judge Breitel and Governor Hugh Carey, among others, decided that the selection process needed to change and supported an appointive selection system for the New York Court of Appeals. (16) This was the subject of a public relations campaign, but no public hearings; almost suddenly appointive selection arrived in New York. (17)
Voters in New York, as elsewhere, generally do not even know who the candidates for judge are, and they often do not vote for judicial candidates at all. …