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The compromise deal to avert primaries for State Supreme Court justices currently being considered by the state Legislature has many detractors. Among its strongest opponents: sitting Supreme Court justices themselves.
Last January, Judge John Gleeson wrote a decision by the U.S. Court of Appeals which ruled the traditional judicial nominating convention system unconstitutional. The ruling was issued in a lawsuit filed by Brooklyn Surrogate Judge Margarita Lopez-Torres and New York University’s Brennan Center.
In the aftermath, the Legislature has been rushing to implement a new system before a court ordered open primary would occur this year. The Legislature’s compromise plan, essentially copied from that used in statewide elections, is a so-called “hybrid” model: a spring designating convention, followed by a petitioning period for slots on a primary ballot. This deal is expected to pass soon.
Many Supreme Court justices are opposed to any move which will force them to run in primaries to retain their jobs after the end of a 14-year term.
Supreme Court Justice Marsha Steinhardt of Brooklyn, president of the Association of Supreme Court Justices, said she and her colleagues believe primaries would place sitting justices at a disadvantage in a reelection campaign. State judicial ethics rules prohibiting sitting judges from raising campaign funds and attending political events until a year before a judicial election are the main reason for a disadvantage.
“We feel for a sitting judge, sitting on the bench for 14 years, an attorney with millions who wants a title can run against us. It is unfair and uneven,” she said.
Steinhardt said she and other justices are hoping the U.S. Supreme Court hears the Lopez-Torres case and rules that the judicial nominating conventions can remain in their current form.
Supreme Court justices are the only elected state judges who do not run in primaries. Nearly every year sees primaries and general elections for New York City Civil Court judges, upstate county and family court judges, Long Island district court judges, and upstate city and town judges.
Steinhardt said that she and her colleagues are in a different category than Civil Court judges, since Supreme Court justices cannot run for a higher judicial office.
By contrast, Civil Court judges can seek Supreme Court seats without being required to resign from the bench.
“We are more out of the loop than Civil Court,” Steinhardt said. “Most of the Civil Court judges who desire to move on up are able to keep political contacts, meet with delegates and raise money. We’re in the courthouse and can’t meet with the political types each year.”
State Sen. John DeFrancisco (R-Syracuse), the chair of the Senate Judiciary Committee, said he does not see why Supreme Court justices want to be treated differently from other elected officials in the state, including other judges.
DeFrancisco described the hybrid model, which he helped design, as a middle ground which allows the system to be fair to incumbent justices, political insiders and insurgent candidates.
The model will allow those who receive the majority of a convention vote in the designating convention to run in a primary as the party’s designated candidate and those who receive over 25 percent of the convention vote to be on the primary ballot.
Other candidates can petition into a primary. Under current state law, judicial candidates can run in multiple primaries without seeking Wilson-Pakula permission from party leaders.
“The purpose is so that the system is open and those not in the inner circle can run,” DeFrancisco said. “The fact that you are a judge does not mean you are endowed with the job for life.”
Unlike Supreme Court justices, who are routinely cross endorsed for reelection statewide, DeFrancisco noted that there have been several examples of county and family court judges who faced competitive primaries and general elections in their reelection campaigns.
In order to change to an appointive Supreme Court, the state Constitution would need to be amended. To be added to the Constitution, an amendment has to pass two consecutive Legislatures and then pass a public referendum. This means that even if the Legislature voted on the deal immediately, the change could not become part of the Constitution until late 2009, and therefore not affect elections until 2010 at the earliest.
Sitting Supreme Court justices also believe the size of their judicial districts may be too big to effectively campaign in, given the current restrictions imposed on their fundraising. Districts can cover a lot of ground, from one which combines Brooklyn and Staten Island to some upstate which encompass eight or more counties.
Legislators have discussed downsizing judicial districts to create 60 countywide Supreme Court districts and one district encompassing upstate Essex and Hamilton Counties. Hamilton, with 5,000 residents, is the state’s least populated county. Proponents say doing so will allow greater geographic and racial diversity on the court. Currently in the district encompassing Brooklyn and Staten Island, all the justices are from Brooklyn.
Supreme Court Justice David Demarest of St. Lawrence County is the treasurer of the justices’ association. He is facing reelection this year in the Fourth Judicial District, which includes the North Country.
He said that while he is prepared to run in a primary, the size of his district makes it tough to run a competitive race and that as a resident of a smaller county he believes he would be at a disadvantage against an opponent from one of the district’s population centers.
“There is a crucial need to reduce the size of judicial districts,” James Sample, counsel for the Brennan Center, said. “We have argued for countywide districts. It would reduce campaign costs.”
Justices are not the only ones opposed to the concept of primaries. The state bar association has endorsed primaries as an interim measure to comply with the federal court’s ruling, but has asked for a merit selection process of appointment to be implemented.
Mark Alcott, president of the state bar association, believes the current tinkering with the status quo provides ample reason to worry.
“We are concerned about primary elections,” he said. “We are concerned about the corrosive influence of money, and the need of judicial candidates to raise money.”