A Window of Opportunity
From the Association’s inception, it has worked to improve the way judges are selected. Indeed, this was the reason the Association was formed. Now, as then, media reports have underscored the weaknesses in our system of placing judges on the bench. Though the judicial system has improved greatly since our early days – the corruption-scarred years of Boss Tweed – the current media attention on our courts may provide the stimulus to generate public support for judicial reform. We should try to seize this opportunity.
I know it is no surprise to you that political party leaders have almost total control in deciding who becomes a judge through the elective system. In most of New York State, one party dominates the local political scene, and its leaders can impose the party’s will. The news emanating from Brooklyn on how that power is exercised tarnishes not only those involved, but the many honest and industrious judges who work at great financial sacrifice, often under difficult if not deplorable conditions. The public has a right to question our system of justice in the face of recent news events.
Over the summer, I appointed a Task Force chaired by Robert D. Joffe, a vice-president of the Association, to develop recommendations for what should be done in the short and long term to improve judicial selection. The Task Force has issued its report (available on our website, www.abcny.org), which reaffirms the Association’s long-standing support for having all judges selected through a merit-based appointment system. It also makes extensive recommendations to improve the elective system, many of which could be implemented now, without the need for constitutional amendments, by political leaders with integrity and vision.
Under the recommended merit-based appointment system, an independent screening committee would present three nominees for each vacancy to the appointing authority, who would then be bound to choose from those nominated. This system would avoid the ills
of the elective system, including dominance by political leaders, and the need to solicit campaign funds and wage combative campaigns. The report finds that “the elective process provides the illusion of voter participation...judicial selection guided by an independent, diverse screening body representative of the public in the respective districts or counties will better provide the public with a judiciary of the highest quality and independence.”
The Association has been urging this approach for over a century, but the political forces have forestalled action, except in 1977 when the voters amended the constitution to provide for appointment of Court of Appeals judges.
The Task Force believes that, in either an elective or appointive system, the key to assuring a high quality, independent bench is the screening committee. The committee must be independent – not beholden to any appointing official or party leader – and must be bipartisan and diverse. The members should be appointed for fixed terms, should come from bar associations, law schools and civic organizations, and should consist of lawyers and nonlawyers. For elective judgeships, the party leaders may identify which groups in their borough should participate, but the groups should select their own designee, who should vote independently rather than follow any organization’s agenda.
Screening committees should actively solicit candidates, including those with no connection to the political system, and should thoroughly check their backgrounds and carefully evaluate their qualifications. Although their deliberations should be private, the committees should otherwise function in as open a manner as possible. The committees should propose three persons for each vacancy, and the judicial delegates and political leaders should pledge to select from among those three. Judges who are seeking re-election and are found qualified by the screening committees should be forwarded to, and approved by, the district judicial convention or political leaders with no other candidate being considered.
In reviewing the screening process for judicial selection, the Task Force was concerned that once a candidate is screened and assumes the bench, there is no further feedback as to performance, or constructive review during his or her term. The judge is not further screened unless she or he seeks a new term. The Task Force believes there should be some mechanism to provide confidential feedback to judges while in office, early in the first term, and then midterm feedback evaluations in the first and all subsequent terms. The process should be run by the Office of Court Administration (OCA), with the involvement of the relevant bar associations. Evaluations should be obtained from beyond just the bar, such as from court personnel and others who may frequently come into contact with the judge. The details of such a program should be worked out by a special committee assembled by OCA. Such a feedback program would be helpful to individual judges and judicial performance in general, and would bolster public confidence in its courts.
I commend and thank the members of the Task Force for this report, which will be in a forthcoming issue of The Record. It will help chart the Association’s efforts and hopefully lead to necessary reforms.