NY Court of Appeals Selection Panned

James Gardiner has published a law review article(.pdf) panning the method of selecting New York State Court of Appeals judges. After a trial lawyer named Jacob Fuchsberg came close to defeating the then Chief Judge through a self-funded campaign, and the following year was elected to the Court, the State Constitution was amended to create a judicial nominating commission with the Governor limited to selecting only from among applicants found to be qualified. There’s a good discussion of how the process has played out and the judges who emerged from it here.

Gardiner’s argument isn’t an attack on the nominating commission itself. Rather, he faults the commission for selecting mostly from lower court judges who themselves were products of an elective system. The article abstract is after the jump but the key concept is:

"Although New York’s current method of selecting Court of Appeals judgess was designed to be wide open and based entirely on merit, the selection process, as it has actually evolved in practice, is neither. It has instead degenerated into a fundamentally closed competition among a very small number of sitting judges of the intermediate state appeals court, making it a process not of judicial appointment, but of judicial promotion. Worse, unlike appointees to the U.S. Court of Appeals for the Second Circuit, which draws from essentially the same lawyer population, few appointees to the New York Court of Appeals have previously distinguished themselves in arenas other than judicial service on lower state courts. Whereas Second Circuit appointees overwhelmingly have significant prior accomplishments in legal practice and executive branch service, the judges of the New York Court of Appeals are distinguished mainly for having worked their way up through the state judiciary."

 I was previously a supporter of judicial elections, particular when I was a Democratic Party official involved in candidate selection, as I thought that community ties were important and that they provided better access for underrepresented groups such as people of color and women. Over time, I lost confidence in that system as it appeared to me not to be designed to put the best people on the bench. In other words, its not that the election system can’t produce great judges, its that its not set up to increase the odds. I don’t recall a single Federal Court clerk, law professor, or big firm partner seeking to be elected judge in Brooklyn during my tenure, although these backgrounds are typical of Federal judges. Gardiner’s point is that Court of Appeals judges are now mostly drawn from the more limited background state judge pool.

Recently, I was appointed to the Association of the Bar’s Judiciary Committee, which evaluates candidates for both elected and appointed positions.

Tip of the hat to Rick Hasen for posting the Gardiner article.

New York’s Inbred Judiciary: Pathologies of Nomination and Appointment of Court of Appeals Judges


James A. Gardner
University at Buffalo Law School, SUNY

Buffalo Law Review: The Docket, Vol. 58, pp. 15-28, 2010

Abstract:     
The practice of selecting judges by popular election, commonplace among the American states, has recently come in for a good deal of criticism, much of it well-founded. But if popular election of judges is a bad method of judicial selection, what ought to replace it? Opponents of judicial election typically treat gubernatorial appointment as self-evidently better. New York’s experience with gubernatorial appointment to its highest court, the Court of Appeals, suggests that greater caution is in order. Although New York’s current method of selecting Court of Appeals judges was designed to be wide open and based entirely on merit, the selection process, as it has actually evolved in practice, is neither. It has instead degenerated into a fundamentally closed competition among a very small number of sitting judges of the intermediate state appeals court, making it a process not of judicial appointment, but of judicial promotion. Worse, unlike appointees to the U.S. Court of Appeals for the Second Circuit, which draws from essentially the same lawyer population, few appointees to the New York Court of Appeals have previously distinguished themselves in arenas other than judicial service on lower state courts. Whereas Second Circuit appointees overwhelmingly have significant prior accomplishments in legal practice and executive branch service, the judges of the New York Court of Appeals are distinguished mainly for having worked their way up through the state judiciary. Perhaps that is why the New York Judicial Nominating Commission received only seventeen applications for Chief Judge of New York in 2008, when the position last became vacant.

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