For Immediate Release
Monday, July 16, 2007
Contact
Jonathan Rosen, BerlinRosen Public Affairs
(646) 452–5637
Brennan Center for Justice Background Briefing:
Brennan Center and Friends of the Court File Briefs before U.S. Supreme Court
Seeking Affirmance of Decisions Enjoining New York’s Judicial Selection System
New York – Today, along with pro bono partners Arnold & Porter LLP and Jenner & Block LLP, the Brennan Center for Justice at NYU School of Law filed its brief urging the U.S. Supreme Court to uphold the unanimous decision of the U.S. Court of Appeals for the Second Circuit enjoining on First Amendment grounds New York’s uniquely burdensome multi-stage system for selecting New York State Supreme Court nominees.
The Brennan Center was supported by a broad and ideologically diverse cross-section of legal, political, academic, and reform organizations and individuals from across the country who filed amicus briefs offering unique perspectives on the operation of New York’s scheme, and supporting affirmance of the Second Circuit’s decision. Eleven briefs were filed on behalf of the following signatories:
1. Brooklyn District Attorney Charles J. Hynes
2. John Dunne, former Assistant United States Attorney General for Civil Rights (1990–1993) under President George H.W. Bush and former NY State Senator.
3. Washington Legal Foundation
4. City of New York, New York State Bar Association, New York City Bar Association, and Fund for Modern Courts
5. New York County Lawyers Association
6. Asian American Legal Defense and Education Fund, Puerto Rican Legal Defense and Education Fund, Hispanic National Bar Association, Puerto Rican Bar Association, Latino Lawyers Association of Queens County, Center for Law and Social Justice at Medgar Evers College, Amistad Black Bar Association of Long Island, and Rochester Black Bar Association
7. Former New York City Mayor Ed Koch
8. American Civil Liberties Union and New York Civil Liberties Union
9. Campaign Legal Center, Reform Institute, and Political Scientists Thomas Mann and Norm Orenstein
10. Former New York Judges (including 3 former Chief Administrative Judges of New York) and the American Judicature Society
11. Prominent Constitutional and Election Law Professors
*NB: The Cato Institute, The Reason Foundation, and the Center for Competitive Politics also filed an amicus brief (in support of neither party) supporting the Second Circuit’s conclusion that New York’s convention scheme is unconstitutional.
About the Case
Although New York purports to grant voters a role in electing New York State Supreme Court Justices (New York’s trial court judges) the reality is entirely different. Candidates are nominated in a complex, state-mandated multi-stage process culminating in judicial conventions that have been rightly characterized as shams. Local party bosses control the multi-stage process at the expense of their party’s rank-and-file members, who are precluded from playing any meaningful role in determining their own party’s standard bearer. The Brennan Center challenged the system as unconstitutional under the First Amendment in Lopez Torres v. New York State Board of Elections. In January 2006, U.S. District Court Judge John Gleeson entered a preliminary injunction against the system. In August, 2006 a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit unanimously affirmed Judge Gleeson’s ruling. In February, the U.S. Supreme Court granted review in the case. Oral argument is scheduled for the first week of October.
The Brennan Center’s Brief
In its brief the Brennan Center urged the Court to tear down one of the last vestiges of Tammany Hall’s boss control of New York State government arguing that “New York’s state-imposed nominating process creates a locked gate, to which those in control of the party hold the only key.” In urging affirmance of the Second Circuit decision, the Brennan Center’s brief assails a system that “vests de facto judicial appointive power in unaccountable party bosses, thereby creating a fertile source for corruption, decreasing confidence in its courts, impeding the search for excellence, and failing to achieve a genuinely representative judiciary.”
The full brief and related documents in the case are available here.
Amicus Brief of Kings County District Attorney Charles J. Hynes
The brief of Brooklyn District Attorney Charles J. Hynes, whose office has successfully prosecuted judicial corruption cases, lays out for the Court, the unmistakable nexus between state’s judicial selection system and corruption in its courts.
“I am persuaded, from my long experience as a prosecutor, voter, citizen, and lawyer that.the problems of corruption in Brooklyn involving Supreme Court judgeships are not attributable to a single corrupt party boss. Rather, as the public record demonstrates, corruption in judicial politics has a long history paralleling the long history of the judicial district convention system,” Hynes wrote. In addition to noting the statewide nature of the problem, Hynes strikingly explains to the Court that the “corruption brought about by the architecture of the Supreme Court nomination system does not end once the judge is tapped by party leaders to serve on the Supreme Court, or when the judge is elected. It often continues, in the form of corruption in the administration of justice.”
Hynes’s full brief is available here.
Amicus Brief of Former Assistant United States Attorney General for Civil Rights (1990–1993) under President George H.W. Bush and former NY State Senator John Dunne
“Mr. Dunne’s own experience is illustrative. Despite his record of dedication to the Republican Party and his demonstrated expertise in the area of judicial elections, he has never been put forward as a delegate candidate, even though he had asked repeatedly for the opportunity. Instead, he has been passed over by local bosses in favor of slates of delegates who can be relied upon to rubber stamp the choices of the “leadership.” These slating decisions are unreviewable. If a State Senator with 24 years’ service to his party can be shut out of the nomination process entirely, there is little hope for rank-and-file party members who do not hold elected office.”
The full brief is available here.
Amicus Brief of Washington Legal Foundation
If New York were to adopt a law declaring that Supreme Court Justices are to be popularly elected, but only the leaders of the most powerful political party within each judicial district are allowed to vote in that election, the law would surely amount to an unconstitutional abridgement of voting rights…Based on the detailed (and uncontested) factual findings of the district court, the New York election system has exactly the same effect on voting rights.
The full brief is available here.
Amicus Brief of the City of New York, the New York State Bar Association, Association of the Bar of the City of New York, and the Fund for Modern Courts
“As a policy matter, the current system results in the worst of all worlds: New York State effectively has an appointive system in the guise of an electoral system, but an appointive system of the worst kind – a system in which judges are appointed by party leaders who are unaccountable to the public and who base their choices on political loyalty and party credentials, rather than on professional judicial qualifications.”
The full combined brief is available here.
Amicus brief of the New York County Lawyers Association:
“While NYCLA prefers a merit-based appointment system for selecting New York Supreme Court Justices, it is imperative that the current, unconstitutional convention system for selecting Supreme Court Justices not be permitted to continue. The convention system is neither democratic, nor transparent. NYCLA therefore urges this Court to affirm the judgment of the United States Court of Appeals for the Second Circuit so that public confidence in the judiciary, which is a cornerstone of a free society, can be restored.”
The full brief is available here.
Amicus Brief on behalf of the Asian American Legal Defense and Education Fund, the Puerto Rican Legal Defense and Education Fund, the Hispanic National Bar Association, the Puerto Rican Bar Association, the Latino Lawyers Association of Queens County, the Center for Law and Social Justice at Medgar Evers College, the Amistad Black Bar Association of Long Island, and the Rochester Black Bar Association
“Minorities seeking to become supreme court justices in New York are not served by a closed, back-door system built on cronyism and political favors. No diverse, fair system can be built by such means. As a blue-ribbon task force on diversity in the judiciary found fifteen years ago, opening the system is “essential to improving diversity on the bench.”
“The convention system enjoined by the courts below does not serve the State’s interest in promoting racial and ethnic diversity on the bench. The hard numbers confirm that, and the Second Circuit and district court correctly found as much.”
The full brief is available here.
Amicus Brief of Hon. Ed Koch
Former New York City Mayor Ed Koch told the Court that New York’s judicial selection system is as undemocratic today as when he began his political career in the 1960’s.
“New York’s convention system for electing Supreme Court Justices has gone largely unchanged for the forty-plus years that I have been familiar with it. The undemocratic boss run system that I observed in the 1960’s appears to operate no differently today than it did back then,” Koch wrote the court. He added, “Justices of the Supreme Court in New York are not elected, even though their names are on the ballot. They are selected.”
Koch’s full brief is available here.
Amicus Brief of the American Civil Liberties Union and New York Civil Liberties Union
“[H]aving chosen to elect Justices of its State Supreme Court, New York is obligated by the federal Constitution to provide for a fair and accessible electoral process. This it has not done.”
The full brief is available here.
Amicus Brief of Thomas Mann, Norman Ornstein, the Reform Institute and the Campaign Legal Center
“Although New York’s judicial selection scheme genuflects at the altar of democracy, it prays to a very different god: patronage.”
“By effectively lodging the power to control the nomination of state Supreme Court Justices in local political party leaders, New York’s mandated system makes state Supreme Court Justices-and many below them on the judicial ladder-beholden to local party officials. The judges, their law clerks, and other judicial employees become mere patronage spoils.”
“As in the former Soviet Union, where voters had a “choice” of a single candidate picked by the ruling Community Party, see Theodore Shabad, Soviet to Begin Multi-Candidate Election Experiment in June, New York Times A6 (April 15, 1987), voters in New York’s Supreme Court primary enjoy all of democracy’s ceremonies without any of its substance.”
The full brief is available here.
Amicus Brief on behalf of former New York Judges and the American Judicature Society
“The current convention system undermines rather than enhances public confidence in the judiciary.”
“The current convention system thus fails-at the crucial juncture when the nomination is being bestowed-to provide constitutionally required assurances to the public of the nominees’ integrity, competence, impartiality, and quality, and of the integrity of the selection process itself.”
The full brief is available here.
Amicus Brief of Prominent Constitutional and Election Law Professors
“New York State need not elect its state supreme court justices and sound policy reasons would support a decision to dispense with such a practice. But if there are good reasons to elect judges, New York State’s system does not reflect any of them. Insofar as judicial elections make judges accountable to the people and not to established institutions, New York State’s system makes them beholden to party bosses. Insofar as elections make judicial accountability transparent, New York State’s system obscures the connection between the elected and the electorate and surreptitiously lodges power in the proverbial smoked-filled room. Insofar as elections promote vibrant political parties, New York State’s regime usurps the autonomy of political parties to structure decisionmaking for themselves. In all, a worse system for electing judges is difficult to fathom.”
The full brief is available here.
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