It is disconcerting to a reformer to be told that other things
besides her reform are more pressing. Sometimes, when we
have to select priorities, however, one needs to remember the
adage of "first things first." This may be one of those times,
especially if we need to prioritize among reforms.
Recent consideration of reforms to the system for selecting judges for the New York Court of Appeals raises the question of how this system compares to other systems for selecting judges within the State of New York. (1) This article considers some of the comparisons and concludes that even if some improvement of the Court of Appeals system is warranted, this should not obscure the fact that other judicial selection systems within the State are in much greater need of reform.
II. THE FUNDAMENTAL PRINCIPLES OF JUDICIAL SELECTION: AN OVERVIEW OF A SYSTEM CONDUCIVE TO ESTABLISHING RULE OF LAW VALUES
One of the key purposes of a judicial selection system is to select a judiciary in a manner most conducive to establishing the rule of law. This entails, among other things, judges who are competent, independent, accountable, fair, protective of our fundamental rights, and diverse. (2) The World Justice Project's definition of the rule of law captures this nicely, as do some other definitions:
The government and its officials and agents are accountable
under the law.
The laws are clear, publicized, stable, and fair, and protect
fundamental rights, including the security of persons and
The process by which the laws are enacted, administered and
enforced is accessible, fair, and efficient.
The laws are upheld, and access to justice is provided, by
competent, independent, and ethical law enforcement
officials, attorneys or representatives, and judges who are of
sufficient number, have adequate resources, and reflect the
makeup of the communities they serve. (3)
The preeminence of the concept of the rule of law was expressly recognized in President Barack Obama's inaugural address; and the rule of law has been related to economic well-being both internationally and domestically. (4)
A judicial selection system does not operate alone: codes of judicial conduct elaborate on the standards governing a judiciary, including sound judicial temperament and civility; and judicial conduct commissions and administrative judges are charged with enforcing compliance when problems arise. (5)
It has been observed that selecting a judiciary likely to meet these standards requires a process comparable to hiring senior executives. (6) This requires an outreach to potential candidates in order to have a pool of available applicants and a thorough screening, which should involve a background investigation (both personal and professional, including interviews and reference checks), all done by personnel with adequate resources and skills to perform this function. In turn, this may require selecting persons knowledgeable (or training them) on how to acquire the requisite information about the candidate and how to evaluate the information once it has been obtained. Selecting judges is not necessarily an innate skill.
The screeners also have to be governed by rules so that candidates are treated alike and proper criteria are considered. For example, screeners of judges should not reject candidate A because of a bad temperament and accept candidate B despite the same bad temperament. Absent special circumstances, they should not check five references on candidate A, with each reference check lasting five minutes, and forty references on candidate B, with each check lasting an hour. (7) They should not examine the scholarship of candidate A and ignore the scholarship of candidate B. Interviews should be subject to guidelines so as to prevent inappropriate inquiries, such as how a candidate is likely to rule in particular cases. …