By Thomas Tracy
The highest court in the land sanctioned the state’s current selection system for trial judges Wednesday, overturning a previous decision to scrap the process in favor of open primaries. All nine members of the U.S. Supreme Court ruled in favor of the current system, agreeing that “a political party has a First Amendment right to choose a candidate selection process that will in its view produce the nominee who best represents its political platform.” But at least two U.S. Supreme Court judges raised the question about the fine line between “constitutionality and wise policy.” “[Our decision] should not be misread as endorsement of the electoral system under review or disagreement with the findings of the court that described glaring deficiencies in that system,” wrote Justice John Paul Stevens. “As I recall my esteemed former colleague, Thurgood Marshall, remarking on a number of occasions: ‘The Constitution does not prohibit legislatures from enacting stupid laws.” Supreme Court Justice David H. Souter concurred with Judge Stevens’ comment, according to the decision filed on January 16. Following a watershed case spearheaded by the Brennan Center for Justice and Judge Margarita Lopez-Torres, United State District Judge John Gleeson issued a preliminary injunction to the state Board of Elections, barring them from continuing with their party selection system. The Brennan Center for Justice and Judge Lopez reasoned that the party selection system was unconstitutional because it took voting power away from the people. “Local major party leaders — not the voters or the delegates to the judicial nominating conventions — control who becomes a Supreme Court justice and when,” Gleeson affirmed in his decision. “The highly unusual process by which that extremely important office is filled perpetuates that control, and deprives the voters of any meaningful role.” Plans to scrap the convention system was put on hold until an appeal could be made to the U.S. Supreme Court. Arguments were heard on the case last October. Proponents of the convention system said that open primaries would come with a host of its own problems, as well as force judicial candidates to raise thousands of dollars in their run for office and leave them beholden to their supporters. “[The judicial convention] is not a perfect system, but the replacements are much worse,” said City Council-member Lew Fidler, a longtime supporter of the current convention system. “I think that the U.S. Supreme Court was right on the law and now I think we can set about looking at the imperfections of this system and fixing them as best we can to make this work better.” Officials from the Brennan Center for Justice said that they are looking at “further litigation options” that would change the way state judges are selected. “New York has compiled an 87-year record of anti-democratic exclusion, unaccountability and corruption in judicial selection,” said Kent Yalowitz, of Arnold & Porter, who represented the Brennan Center for Justice in this case. “These problems will not go away because the U.S. Supreme Court has turned a blind eye to them.” “This was a 9-0 reversal and that is seldom accomplished,” said Assemblyman Vito Lopez, head of the Kings County Democratic Party. “It legitimizes the process that we have in Brooklyn when it comes to selecting our judges.” The court decision is another victory in a string of wins both Lopez and the Kings County Democratic Party has been celebrating in recent days. Earlier this week, Governor Eliot Spitzer chose three Brooklyn judges to fill four spots in the state’s appellate court. A few days earlier, Lopez was singled out in Spitzer’s “State of the State” address, where he received a standing ovation for his work on affordable housing. “To me that’s a good week,” he said. “It shows that people are respecting us as a political organization on all levels and that whatever fragmentation, discord and polarization we once had is in the past.”
