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"A New Judicial Article for New York" |
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Probably the most controversial area in the drafting of a new judicial article is that of selection of judges. That there is a fundamental relation between the quality of judges and the proper administration of justice is almost too obvious to mention. If judges are mediocre or incompetent, improvement in the other areas of judicial administration becomes almost meaningless. Between 1777 and 1821 the judiciary in New York State was selected by a Council of Appointment, which included four legislators and the Governor, who had a vote only in case of a tie.[59] The 1821 constitution dropped the Council of Appointment[60] and until 1846 judges were selected by the Governor with the consent of the senate. The delegates to the constitutional convention of 1846 felt that the judiciary was not representative of the people. Riding the crest of the wave of Jacksonian Democracy that had swept the country, they switched to an elective system of selecting judges. This change was important not only for New York but for the rest of the country as well, since a great many states followed New York's lead and switched to popular election of judges.[61] Many of these states have since returned to an appointive system of judicial selection.[62] New York, however, still has primarily an elective system, with some important exceptions: Court of Claims judges are appointed by the Governor with the consent of the senate; Family Court and Criminal Court judges in New York City are appointed by the Mayor; and justices of the Appellate Division of the Supreme Court are appointed to that court by the Governor from the popularly elected Supreme Court.[63] Furthermore, vacancies in judicial office are filled by appointment, and a large proportion of judges have reached the bench initially through that means.[64] Once a judge is on the bench, the fact of incumbency gives him an advantage in a subsequent election; indeed, he may well run unopposed. Today, there is a widespread feeling that the election of judges has serious shortcomings, and that it has been a means for incompetent men to achieve judicial office.[65] They fear the embarrassment of risking their professional reputations in contests where political factors unrelated to merit may control. They dislike the idea of having their photographs on posters and campaign buttons and they shrink from arranging to have their virtues extolled by sound trucks. Judicial offices are of such "low visibility" that people are scarcely aware of them and do not know for whom they are voting if they bother to vote for judicial offices at all. A poll taken in 1954 shortly after election day showed that the overwhelming majority of the voters, both in New York City and upstate, could not recall the names of any of the men for whom they had voted in judicial contests.[66] Most people do not care about the judiciary in the same way they care about the executive or legislative branches of government, and they have little way of knowing who would make a good judge. Political bosses, rather than the people, really pick the judges.[67] A vote for a judge is generally a vote for his party rather than for the man himself. In a safe district, nomination by the party in power is tantamount to election. To many able lawyers, the elective system is so unattractive that it discourages them from running for judicial office. A quieter, more discreet procedure might attract better men. When a judge seeks re-election and spends an inordinate amount of time campaigning while his brethren on the bench carry his load, it is the public's time and money that is being wasted. Other unsatisfactory features of the elective system are: (1) a judge may feel obligated toward lawyers who helped in his election, financially or in other ways: (2) a lawyer may be subjected to improper pressure to Contribute to a judge's campaign fund in the fear that a failure to contribute may prejudice the judge against him; (3) a judge may hesitate or refuse to make an unpopular decision shortly before he is up for re-election; and (4) since judges, especially on the trial level, are supposedly not legislating or representing one segment of the population against another, there are no issues upon which candidates can legitimately campaign. Many persons contend that there is very little difference in practice between elective and appointive systems of selection, since politics is the moving force behind both.[68] In the elective system the candidate for judicial office is nominated by party bosses or leaders, whereas in the appointive system, names come before the executive in a variety of ways, but he is almost invariably susceptible to political pressure. If both election and appointment involve politics, and if politics is undesirable in the judicial context, how can politics be eliminated from the selection of judges, or, if not eliminated, its impact minimized? The system most frequently discussed today as a means for minimizing the influence of politics is the "Missouri Plan," also known as the American Bar Association Plan and the "merit system."[69] It involves both an appointive and an elective process, calling for the initial appointment of a judge by the executive from a list of names supplied by a nominating commission, and then requiring periodic submission of the judge to the electorate for retention or removal on the basis of his record. Since the purpose of the plan is to take judicial selection out of politics as far as possible, the commission must be essentially nonpolitical. While it is probably impossible to make a commission truly non-partisan, it is possible to make it bi-partisan. As experience not only in Missouri but also in New York City and elsewhere demonstrates, a nominating commission can be converted into a smokescreen to conceal the partisan political selection of judges.[70] The chief executive, when candidates from both parties are submitted to him, may insist upon choosing a man from his own party.[71] Or, more deviously still, he may directly or indirectly submit the name of his own candidate, and then when that name along with others is returned to him, pick it out of the hat as if by magic.[72] Even so, a nominating commission may serve a useful screening purpose: it can eliminate grossly unqualified candidates by the simple expedient of refusing to nominate them for appointment. This is a surer device for eliminating obvious incompetents than relying upon the unofficial recommendations of bar associations and civic organizations whose advice can be disregarded with impunity.[73] Probably the only way that a nominating commission can be made to function in the way ideally intended is (1) to give it adequate staff and machinery to actively recruit highly qualified candidates, and (2) then to persuade the appointing authority to leave it alone, restricting himself solely to the task of choosing the best candidate from among those presented to him. Unfortunately, these conditions are hardly of such a nature that they can be created by constitutional provision. There is a wide diversity of opinion as to how a nominating commission or commissions should be composed.[74] How many should there be? What courts and what geographical areas should each cover? Should the commissions include lawyers? Should they have ethnic diversification? The conflict of opinion is so great that it might be necessary to bypass the commission entirely and simply use straight appointment by the executive, preferably with subsequent legislative confirmation. This would be essentially the federal system. One of the standard arguments in favor of such a system is that it places responsibility for judicial selection on a politically answerable individual — the executive — rather than sonic amorphous group.[75] Perhaps so, but what does "responsibility" mean in the context of judicial selection? If it means that the executive will be held responsible for a bad judicial appointment in the sense that he will be turned out of office by the voters at the next election, it is not a very convincing argument. How many executives have been unseated for the low quality of their judicial appointments? In how many cases has that even been a significant factor? An element of the Missouri Plan which is the subject of lively dispute is the periodic resubmission of the judge to election. We have already examined the "low visibility" of judicial office — the idea that most judicial candidates are unknown to the electorate. If this is true in initial election of judges, it is just as true when a judge stands for re-election. It seems highly unlikely that a judge will he unseated when there is no one to stand against him unless his conduct has been notoriously, even spectacularly, bad. To say that the people will examine a man's record is absurd. What is a judge's record? Is it the number of cases he handles in a month, without regard to their size or complexity? The number of convictions that are had in his court, without regard to the facts in the cases? The size of the personal injury judgments? Even though court proceedings are matters of public record, the public knows and can know little of what really goes on in the courts. How then can the average man know who is a good and who a bad judge, and how can he make an intelligent choice in a judicial election, Missouri type or otherwise? It may well be that the re-election feature of the Missouri plan is nothing more than a political gimmick to make the appointment and life tenure of judges palatable to voters who are accustomed to an elective system and limited terms of office. If the delegates to the constitutional convention decide to switch to an appointive system of selecting judges, they will have to decide where the appointing power should be lodged. Such power of appointing judges to major posts as now exists is divided between the Governor and the Mayor of the City of New York.[76] An attractive compromise which is not too radical a departure from present practice might be to give the Mayor power to appoint all judges in New York City below the level of the Supreme Court and to give the Governor power to appoint all other judges. The matter of ensuring that local communities would have a voice in judicial selection could be handled by creating nominating commissions, not only in the City of New York — for judges at all levels who would serve there — but also outside of the city on a fairly local basis — tied perhaps to something like the present Supreme Court districts. |
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 The Historical Society of the Courts of the State of New York |