Academic journal article Justice System Journal

Judge Lopez Torres and New York's Trial Judge Nominating Process

Academic journal article Justice System Journal

Judge Lopez Torres and New York's Trial Judge Nominating Process

Article excerpt

As prescribed by its constitution, New York holds elections for judges to its supreme courts, the trial courts of general jurisdiction. In Lopez Torres v. New York State Board of Elections, 462 F.3d 161 (2d Cir. 2006), the Second Circuit held that the state's nominating process for these courts deprives potential judicial candidates and voters of their First Amendment rights. For a panel including circuit judges Sotomayor and Hall, Judge Chester Straub said, "New York's nominating process . . . does not merely deprive a candidate of a realistic chance to prevail; rather, through the use of overlapping and severe burdens, it deprives a candidate of access altogeth' er" (at 189). This decision may be the impetus for momentous change to the state's selection methods, and perhaps to its judicial system more generally. Much, however, will depend upon what is said by the U.S. Supreme Court, which granted certiorari in the case in February 2007.

The formal methods of judicial selection in New York are "unique" (at 171). Certainly, the state's rules are archaic. An 1846 amendment to its constitution compels election of judges to the state's supreme court. Interestingly, this constitutional provision provides no other details, so over the years the state legislature has filled in details. Initially, candidates were nominated in judicial conventions. In 1911 the state then employed primary elections. However, anxiety over the influence of money and parties in "bare-knuckled" primaries and over potential lack of judicial independence persuaded the state once again to alter its nominating process (at 171-72). The result was the multifaceted nominating process enacted in 1921, which remains in place. As codified in New York's constitution and laws, the first phase includes a primary in which judicial delegates are elected. In the second phase, these delegates attend a nominating convention where judicial candidates are selected. Finally, the candidates' names are placed on a general election ballot, from which Supreme Court judges ultimately are elected by the public.

Judge Lopez Torres was a popular civil court judge in Brooklyn who had twice won election to this post by large margins. After her initial victory, local party officials attempted to persuade her to hire a particular party worker as her law secretary, an important substantive position within chambers. Based on her view of the potential employee's merits, Judge Lopez Torres decided instead to hire another lawyer for this position. Afterwards, she was severely chastised by party leaders, one of whom told the judge that she "did not understand the way it works... [that she] would want to become a Supreme Court Justice and the party leaders would not forget this" and that without party backing a place on the Supreme Court "will not happen" (at 179). Sure enough, when Judge Lopez Torres attempted to secure a nomination for the supreme court on subsequent occasions, party leaders ensured she would not gain ballot access. Facing these obstacles to the ballot without party support-in reality, the party actively opposed her candidacy-she removed her name from contention, but she has continued to serve as a judge and has served in Brooklyn's surrogate court since 2006.

Because of these events and matters involving other judicial candidates, in 2004 Judge Lopez Torres and others brought suit in federal district court against the New York Board of Elections, alleging the nominating system for the state's supreme court violated the First Amendment's freedom-of-association rights of both judicial candidates and their supporters in the voting public. Plaintiffs demanded the court declare the relevant provisions of New York's election law unconstitutional. They also sought an injunction to require the state legislature to enact a new method of selection and to require the state to conduct direct primary elections until a new system is in place. After an extensive hearing and on the basis of a voluminous record, in January 2006 Judge John Gleeson of the Eastern District of New York granted plaintiffs' motion, stating that they demonstrated a clear likelihood of success on the merits. …

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