The Reappointment of State Court Judges

May 1998

Imagine you are arguing in the Appellate Division; you are contending that the state lacked the authority to condemn your client¡¦s valuable land. Or you are arguing that New York¡¦s death penalty law, championed by the Governor, is unconstitutional. Perhaps you are contesting the legality of the state to deny welfare benefits to a large class of persons. As difficult and controversial as these cases are, you expect even-handed justice even though you are arguing against the state. Despite the fact that every Appellate Division judge before whom you appear is subject to reappointment by the Governor, you must feel confident that the judges will rule fairly.

It is this expectation, and fact, of equal justice that lies at the heart of the recent controversy over Governor Pataki¡¦s failure to reappoint Justice Francis T. Murphy to the Appellate Division. Unlike the federal system, where judges are appointed for life, judges in New York are selected for 10- or 14-year terms, and five-year designations are made by the Governor to the Appellate Divisions. If a judge has performed credibly should he or she automatically be reappointed, or may the appointing authority also consider whether the judge¡¦s prior rulings are consistent with the Governor¡¦s or Mayor¡¦s own philosophy?

The Standard for Judicial Appointment

As lawyers we can all agree upon certain basic standards we expect of our judges. A judge should have unquestioned integrity, a thorough knowledge and understanding of the law, and the ability to be impartial, open minded and have an appropriate demeanor and temperament. It is these standards the Association¡¦s Committee on the Judiciary (Daniel Kolb, Chair) labors to apply as it annually evaluates the more than 100 candidates for election and appointment¡Xincluding re-election and reappointment¡Xto the bench in this City.

The Standard for Judicial Reappointment

Since the New York Constitution does not provide for life tenure, it follows that reappointments are not automatic. One of the benefits of a fixed term for a judge is that it enables the appointing authority to review the record to see whether the expectations of integrity, intelligence and demeanor have been met. Unlike the initial appointment, where a lawyer¡¦s career is reviewed in an effort to predict whether the candidate has the requisite qualifications to be a judge, reappointment allows review of the judge¡¦s actual record to determine if he or she has performed as anticipated. If, for example, the judge has been abusive and demeaning in the courtroom, shown hostility to pro se litigants, or been habitually late on the bench, reappointment should be denied.

In fact, the Association recently concluded that a Family Court Judge should be denied reappointment to a 10-year term because it found that, during her seven previous years on the bench, she had lacked appropriate demeanor and temperament. Unfortunately, for the first time in 20 years, the Mayor ignored the Association's conclusions and reappointed the Judge for a full ten-year term.

But if a judge has performed satisfactorily should reappointment be denied because the appointing authority disagrees with some of the judge¡¦s decisions? The answer to this question lies in the critical role an independent judiciary plays in our system of government.

As early as 1776, Americans insisted that to preserve their liberties and to guard against the excesses of the other branches of government, the judiciary should be separate and independent. The Declaration of Independence listed as a principal grievance the fact that ¡§[the King] has made Judges dependent on his Will alone for the tenure of their offices. . . .¡¨ Ever since, on a national, state and local level, we have insisted on the independence of our judges.

It is because of the need to maintain this independence that for over 100 years New York Governors, balancing their potent appointment authority against the need to preserve the integrity of the judiciary, have made their reappointment decisions based on the judge¡¦s integrity, intelligence and demeanor. Agreement with the judge¡¦s decisions has not been a relevant part of the inquiry. In fact, Governor Pataki himself wrote that ¡§removal [of a judge] for a few bad decisions could be ruinous for the independence of the judiciary, which is a bulwark of our liberty.¡¨

Foreshadowing the current controversy, former Association President, and Fordham University School of Law Dean John D. Feerick, in his noted 1996 Leslie H. Arps Memorial Lecture, said: ¡§To minimize the threat to judicial independence [of] judges who serve fixed terms we must safeguard the right of such judges to be evaluated based upon appropriate factors¡Xsuch as ability, integrity, competence¡Xand not on the popularity of any particular opinions which the judge has rendered.¡¨

Yet, it is on this precise point that the Governor and the organized bar¡Xincluding this Association and the State Bar Association¡Xparted company in the case of Justice Murphy. Because the Governor apparently concluded that he did not agree with some of the Justices¡¦s previous decisions, he let it be known that he would not reappoint Justice Murphy. In an unprecedented action, reappointment was denied not because of questions of integrity, demeanor or intellect, but solely out of disagreement with prior rulings. The message this action sends to sitting judges¡Xintended or not¡Xis clear: decide my way or risk not being reappointed. None of us, and I am sure not the Governor, want a system where judges harbor such a fear. Nor do we want to appear before a judge who thinks that the likelihood of reappointment hinges upon the way a case is decided .

This concern cannot be dismissed by arguing, as some do, that it is an insult to the bench to suggest that for the sake of being reappointed a sitting judge will do something other than what ought to be done. Judges are human (indeed, humanity is crucial to success on the bench). If their judicial careers may come to an end because the appointing authority does not like the way they decide a particular case, some may stumble, or be perceived to have stumbled, under the pressure. We should not subject our judges to such a challenge. Nor should we allow the perception of justice to be affected by speculation that the outcome of a case was dictated by a concern over reappointment.

Conclusion

It is important that the most highly qualified persons continue to be appointed to the bench. If, following appointment for a fixed term, a judge performs with integrity, competence and appropriate demeanor, reappointment should follow. To do otherwise threatens the independence of the judiciary and the perception of justice.