Tuesday, May 19, 2009
Picking Supreme Court Judges New York
Picking Judges in New York
In January, 2007, U.S. District Judge John Gleeson ruled that the current system of nominating State Supreme Court judges in New York is unconstitutional. At a recent forum at the Association of the Bar of the City of New York, a panel of experts weighed in on the subject of how to select judges and why it matters. The following articles are edited transcripts of the event.
Giving Voters Real Choices
by Deborah Goldberg, Gotham Gazette, 29 May 2006
In January, Judge John Gleeson ruled on the case Lopez Torres vs. the New York State Board of Elections, which held that highly qualified candidates for Supreme Court deemed to be not sufficiently loyal to the party are unable to secure the nomination in New York.
Margarita Lopez Torres (pictured as she handed out campaign literature) ran for civil court with the support of the party in 1992 and later decided that she wanted to run for Supreme Court. After she got her seat on the civil court bench, she was given instructions from the county leader to hire a particular court attorney. Lopez Torres determined that the particular court attorney was not qualified for the position and refused to hire him. When time came for the Supreme Court nomination, she was told that the party needed loyalty – that those who stand by the county party can move on to the Supreme Court, those who do not stand by the party, cannot.
In the brief to the court, the defendants do not argue that the convention system serves judicial integrity or judicial independence. They do argue that the system serves the party associational interests and an interest in racial, ethnic and geographic diversity.
The first interest – the party’s rights to freedom of association – does not, in our view, include its right to exclude its own members from the nomination process. And geographic diversity can be addressed without burdening voters’ rights simply by imposing residency requirements on the judicial candidates, which do not now exist, or by reducing the size of the judicial districts, so that there would be smaller districts from which each judge would run. Racial diversity is a serious interest and whether or not the system in place or other alternatives created will be a great concern.
We begin with the premise that sham elections are not consistent with democracy. And sham elections are what we have under the current convention system. Our state constitution requires that our Supreme Courts judges must be elected. But the convention system allows the county leaders to usurp from the voters the power to select the justices.
During the course of the litigation, for example, evidence was entered that the New York County Democratic leader said that he had the votes to “kill someone.” In other words, “I can’t guarantee that I can always make you, but I can surely block you.”
That means that nobody becomes a Supreme Court justice unless the county leader agrees. In fact, after 13 days of hearings, 24 witnesses, and 10,000 pages of evidence, there was no evidence of a single person ever becoming a Supreme Court justice over the objection of a county leader. Between 1994 and 2002, 96 percent of all Supreme Court nominations statewide were completely uncontested.
In our view, if there are going to be elections in New York, then voters should have some real choice in selecting who is going to be on the bench. Now, whether there should be elections at all in New York is a different question, but in this case, the defendants argued that there is no right to meaningful participation in judicial nominations. To me, that is tantamount to the claim that meaningless participation is enough.
Having political parties control who is nominated to the Supreme Court is not consistent with judicial independence, impartiality or integrity.
AN ARGUMENT FOR PRIMARY ELECTIONS
The district court preliminarily enjoined the operation of the convention system. That means that until trial or until the legislature changes the system, the convention system is not in force. The original injunction would have defaulted to the fallback process in the statute, which are primary elections.
There were primary elections many decades ago, the convention system was put in the place, and so when the judge knocked down the convention system, he simply did what he deemed to be the least intrusive thing he could do, which was to reinstate the process that existed before.
This is the first real opportunity in decades to revisit the issue of how judges should be selected. If this decision is upheld on appeal, it will probably be the last opportunity we will have for decades. The party leaders have controlled this process for many years and unless we have an opportunity now, it is unlikely that will ever be able to persuade them to change.
The Brennan Center has not taken a position that open primaries are the best decision. We have not taken a position as to what we think the best system is. We believe there is more work to be done before we can make that decision.
The problem with the current system is that the party leaders control the selection. I am concerned that just tinkering with the system is going to replicate the problem.
More formal screening panels, for example, would not eliminate loyalty tests. Candidates will still know that at the end of the day, that the party leader will have the power to block the nomination. As long as that is the case then we have not addressed the constitutional problem.
As long as there is a system that allows the party leader to exercise that veto, we are still going to have highly qualified candidates who are going to self-select themselves out of the process.
So the candidates who come before the commission will not necessarily be the most honest, most competent, the people with the highest ethical standards. They will be the people who know that they can make a case to the party leader.
RESPONDING TO FOUR CONCERNS ABOUT ELECTIONS
The alternative – primary elections – should not be evaluated as a fallback system alone, but in terms of what they could be if there were appropriate amendments.
The first concern about primary elections for Supreme Court is the cost. Some worry that quality candidates who either cannot or do not want to raise large sums of money will not run for office, or that they will be outspent by self-financed candidates. Public funding would address most of this issue.
We have done studies of judicial races and the cost of campaigns across the country, and we have found that the most expensive races are for the high court seats. People are spending millions of dollars on judicial races where there is no higher body in the state to overrule the judge, so it is a very important policymaking position. But we are not seeing, for the most part, very expensive trial court races.
2. Geographic Diversity
Another concern is geographic diversity, and reducing the size of judicial districts would address this issue. If a candidate can run in a single county, then candidates are not in the position to beg for scraps from the leader from the most powerful county.
For example, people in Staten Island have to convince the Brooklyn party leader that they deserve a seat on the bench. If Staten Island had its own district, they would have a much better opportunity to have geographic diversity.
3. Women on the Bench
On gender diversity, the Women’s Bar of the State of New York has submitted an amicus brief in support of the defendants in the case. They do not address the underlying issue of constitutionality, but some members are concerned that the move from a convention system to primarily elections will depress gender diversity in New York State courts. They argue “women will not be able to compete on equal footing with historically more politically entrenched candidates for Supreme Court justice.”
I find this ironic because right now women are at the mercy of politically entrenched, male party leaders.
I don’t think that they are likely to be facing greater entrenchment in an open primary. In 2002, the New York State Judicial Committee on Women in the Courts found that only 17 percent of Supreme Court justices were women. Even in New York City, 26 percent of Supreme Court justices were women, where as 47 percent of Civil Court judges were women. Civil Court judges run in primaries countywide, just as Supreme Court judges would have to do.
4. Racial Diversity
I also want to talk about racial diversity. In 2001, 92 percent of the Supreme Court justices of color in the state were from New York City. Even in New York City, from 1992 to 2002, people of color held 39 percent of civil court seats, but only 27 percent of Supreme Court seats. So in New York City, where we have majority populations of color, there is reason to believe, especially if there is public funding, that communities of color will be able to elect judges.
AN OPPORTUNITY FOR CHANGE
The one thing that public financing and smaller districts would not address is the fundamental question of whether the election of judges is appropriate in the first place.
Many people believe that institutionally the judiciary is not designed to answer to the tyranny of the majority and that the election process is fundamentally flawed. I’m not sure I agree with that. But even if you do believe that, now is an amazing opportunity for people of the state of New York to engage in a discussion about what is the best system.
Deborah Goldberg is the director of the Democracy Program at the Brennan Center for Justice
Selecting the Most Qualified Judges
by Michael Cardozo, Gotham Gazette, 29 May 2006
I have long been a strong believer in merit selection. I personally believe it should be our ultimate goal. Unfortunately, I also think it’s not a realistic goal to be achieved in the near future.
I do not want to have open primaries. I have real questions about whether or not voters really can meaningfully cast their vote in primaries. I don’t know what issues judges are going to campaign on, or how voters can intelligently exercise their franchise.
THE PROBLEM OF MONEY
In Texas, there is a story (that I believe is only half apocryphal). Two people try a case before a judge. The judge says, “I want the record to reflect that a lawyer for the plaintiff gave me $10,000 for my campaign and the lawyer for the defendant only gave me $5,000 for my campaign.” And the lawyer for the defense says, “Judge, can we adjourn so I can write you a check?”
If we have open primaries, the issue of money is something that everyone should be very concerned about. Public financing would partially address the issue, but it would not address how voters make their decisions.
I do not think that you are going to be able to generate a consensus for merit selection anytime in the foreseeable future. I do not think that you are going to be able to generate consensus on public financing for judicial candidates. If we believe that, I think we are kidding ourselves.
So if we are not going to get merit selection and if the open primary approach is not particularly desirable, then let’s look at the judicial conventions system and ask what is wrong with it and see if it can be corrected.
I think there are two fundamental problems with the convention system. As Judge Gleeson pointed out, it is virtually impossible for anyone who wants to buck the county leader to get elected. So, we have to look at how you can correct that.
The second issue is the “Clarence Norman” problem. Testimony in the case demonstrated that the county leader has had virtual dictatorial power of the quality of the people coming out of the system. There are a lot of judges who should be on the bench. But there are also a lot of people who were able to make deals and they should not be on the bench, but they are.
REFORMING JUDCIAL CONVENTIONS
So how do you correct these flaws?
1. Easier Ballot Access
The first flaw, which I’ll call the constitutional flaw, has two basic issues. One is the number of signatures required for a delegate to get elected. Both the Feerick Commission and Mayor Bloomberg have suggested that you change that 500-signature requirement to 250 to make it easier for people to get on the ballot.
2. Fewer Delegates
The second issue is that under the current statute each party can determine how many delegates there should be at a judicial convention. So if you have a large convention, and you want to run as a maverick candidate, you not only have to get a lot of signatures, but you have to have support from a lot of people at the convention.
Mayor Michael Bloomberg has proposed that the smallest assembly district within the particular judicial district has one delegate, and that the number increase based on population in each district. The Feerick Commission suggested that you have weighted voting to achieve the same balance. Either way, you have to cut down the number of delegates.
3. Screening Panels
So how are we going to ensure that the most qualified people come out of the convention system and not just people who pass some minimal professional criteria?
Unfortunately, the New York State Constitution gets in the way of this. The constitution says that the only qualifications for judges is that you have to be a certain age and you have to have practiced law for a certain period of time. You cannot say that you have to be found “highly qualified” to run for judge.
But what you can do – and this is what the Feerick Commission, Judge Judith Kaye, and the mayor have all proposed – is set up a judicial qualification commission. The commission finds the people at the convention who are qualified to be a judge.
The mayor has pushed this one step further; he has suggested that the qualification commission find the three most highly qualified candidates for each slot.
You cannot mandate that the convention only select from those three people, but if you have a statute and you create this commission I would hope that this would force the parties to adhere to the recommendations of the qualifications commission.
There can be lengthy debate – if we get that far – as to who should pick the members of the judicial qualification commission.
However that is done, you must establish an independent judicial commission and then you ask those people to find the most qualified people. Those are the names are presented to the convention. I think this would change the entire dynamic. We have an opportunity. I hope we can get the State Legislature to wake up and take on this debate.
Michael Cardozo is the corporation counsel for New York City
Conventions Create A Diverse Judiciary
by Paul Wooten, Gotham Gazette, 29 May 2006
I was first elected as a judicial delegate in Brooklyn in 1982. At that time, the conventions were very quick, they only lasted one day. The county leaders picked the judges. And most of the judges who came out of the convention in the early 1980s were white, and no one cared about how the convention worked and who got elected. That was just how it was.
I want to explain how the judicial convention works today.
Every assembly district is allotted a certain number of delegates – anywhere from five to eight people – based on the party turnout from the previous gubernatorial election. Delegates run on the slate with the district leaders, who are party officials, and they go to the convention. The judicial delegates, either by voice vote or hand vote, determine who wins the nomination for Supreme Court justice.
In the early 1980s, white judges were elected and qualified African-Americans and Hispanics could not get elected. But over the last thirty years, the population of white residents in Brooklyn went down and the African-American and Hispanic populations have risen.
Today, African-American and Hispanic populations control the two most populous districts in Brooklyn and as a result elect judicial delegates who are black and Hispanic. They have, in turn, elected African-American and Hispanic judges to the bench. We have a larger percentage of African American judges in Brooklyn than in some states. And that is a direct result of population changes, the judicial conventions, and how they work.
Because of judicial delegates, we have African-Americans and Latinos on the bench.
WHY MERIT SELECTION WON’T WORK
From my experience, the best way can power sharing for minorities is through some kind of elective process. I have huge concerns about the merit process. I’ve looked at them; I’ve been on screening panels. The merit process does not work for me.
Look at the current situation in the merit screening process of the governor. The governor has been in office for ten years, and he has a merit process for the appellate division. The first division of the appellate division has a huge African-American and Latino population in Brooklyn and Queens. But of the 16 appellate judges in the division, there is only one African American and one Hispanic.
Of the 60 Courts of Claim judges, which are appointed by the governor, we have one African-American and three Hispanics. And the one African-American judge was a candidate for Congress and basically he was appointed at the request of the Democratic Party in Queens. It had nothing to do with merit.
The Brooklyn family court –whose judges are appointed by the mayor - services the largest minority population in the state. We have no African-American family court judges. Not one.
Merit selection boards appoint people who look like them. The judicial conduct commission has 11 members, all appointed, and has no minority representative. Under merit selection, the majority of the people in the room are not people of color. When it comes down to the question of “who is the best?” or limiting it to the best three out of ten, there is a strong likelihood that people of color will be eliminated.
There are problems with the judicial conventions, but there are things that can be done to make judicial conventions better.
First of all, we have to let the delegates determine who the judicial candidate is.
In my experience, whenever a candidate gets enough momentum to become a threat at the judicial convention, the party leader always adopts that candidate. Some would say, a person didn’t get elected because the county leader opposed them, but nine times out of ten, consensus means that they did not have enough support. Consensus means that the party is holding things together, and that is how you are chosen.
The Gleeson decision talks about a “super majority” that is needed to challenge a judicial convention, but I dispute that. In the 1980s, we ran delegates in assembly districts against delegates from the country organization.
We found that you don’t need a super majority to challenge the judicial convention. All you have to do is have enough delegates to support you – about one-third – so that you can go to the convention with enough votes to negotiate.
Here are other four ways to improve the judicial convention:
1. Make the judicial delegates public.
2. Open the convention.
3. Allow candidates to speak at these events.
4. Allow time for electioneering.
And if you are going to keep the judicial conventions, give them the right to choose. To now say, you are smart enough to be elected by the direct vote of the people, but you are not smart enough to determine who is best qualified, and we have to put a panel up here to filter who you can choose from, strikes against my sense of what electoral politics are.
When you run for State Senate or Assembly or Congress, there is not a panel to determine if you are a good candidate. The public has the ability with input from bar associations, to determine who the best judges are.
Paul Wooten heads up Paul Wooten and Associates
[Editor: for the First Amended Complaint,click the hyperlink)
2nd Circuit Panel Probes N.Y. Judicial Election Remedy
Tom Perrotta, NY Law Journal, 06-09-2006
In a lively and sometimes humorous argument that stretched from a planned 40 minutes to two hours, the three appellate judges considering the constitutionality of New York's system for electing Supreme Court justices gave little indication of what the future might hold.
Would they affirm Eastern District of New York Judge John Gleeson, ending a convention system that dates back to 1921 and leaving Supreme Court justices to fight their way through open primaries? Would they remand the case for a new remedy, perhaps asking Gleeson to hold a full trial while staying his ruling through the 2007 election, giving the Legislature time to act? Or might they simply reverse after finding that the complicated convention system that gives the state its judges is perhaps not a shining example of democracy, but constitutional nonetheless?
To say the three-judge panel of the 2nd U.S. Circuit Court of Appeals was difficult to read is an understatement. When Joseph L. Forstadt of Stroock & Stroock & Lavan stood up to defend the system on behalf of the state's Supreme Court justices, he sheepishly suggested that the court had seemed to reach a conclusion on the facts -- a reasonable statement considering how forcefully the judges had attacked Andrew J. Rossman of Akin Gump Strauss Hauer & Feld, which represents the New York County Democratic Committee.
"That's really not accurate," Judge Sonia Sotomayor interrupted. "You haven't sat through argument long enough to say that. You haven't given me a shot at the other side."
Laughter ensued, but Sotomayor kept her promise when Frederick A.O. Schwarz of Cravath, Swaine & Moore, acting as the senior counsel for the Brennan Center for Justice at New York University School of Law, took his turn for the plaintiffs.
Judge Chester J. Straub took his shots, too. Judge Peter W. Hall also asked numerous questions of both sides, though he was less combative than his colleagues.
At issue is a singular ruling from Gleeson, in which he found that New York's complex convention system was a sham that left political leaders entirely in control of who becomes a judicial candidate.
Of the 33 states that elect trial court judges, only New York relies on a convention system. Plaintiffs in the suit, an array of potential judicial candidates and the civic group Common Cause/NY, argued that without the backing of party leaders -- whether it be the Democratic leaders in New York City or the Republican leaders upstate -- a prospective judicial candidate could not hope to sway enough delegates to emerge from a convention victorious.
Gleeson held extensive hearings, and in January, 14 months after the suit was filed, he found that the system violated the U.S. Constitution. He noted that the number of petitions required to field a winning slate of delegates was so great that it was easier to run for mayor of the City of New York. He imposed a primary election, before staying his ruling until the end of this year.
"The state may not pass off the will of party leaders as the will of the people," Gleeson wrote in Lopez Torres v. New York State Board of Elections, 411 F. Supp. 2d 212 (EDNY 2006). "Because that is exactly what the New York judicial convention system does, it violates the First Amendment."
DISCUSSION OF REMEDY
Before Wednesday's arguments began, Straub, flanked by Sotomayor on his right and Hall on his left, asked Rossman and Forstadt, and Caitlin J. Halligan of the Attorney General's Office, to address Gleeson's remedy.
Rossman argued that if the panel did not simply reverse Gleeson, it ought to ask him to assess which aspects of the convention system were unconstitutional -- such as the petitioning requirements or the amount of time candidates have to lobby delegates -- and more narrowly tailor his solution.
"You would like him to decide how many signatures, how many delegates?" Straub asked incredulously. "This is what you would want Judge Gleeson to do on remand?"
"It's repairing the building rather than demolishing the building," Rossman said.
Halligan asked for something the state had not requested before: a stay of Gleeson's ruling until after the 2007 election, so the Legislature could act. She said she would prefer it if the judge did not take any further action, or hold a trial, until that time.
Sotomayor seemed particularly uninterested in giving the Legislature an open-ended amount of time to solve the problem, assuming the court held there was a problem to solve. She caused laughter when she said it was not a good idea to give the Legislature "another 85 years to figure this out." An "indefinite time," she said, "is not acceptable."
Schwarz countered that Gleeson had acted with proper judicial restraint, since it was not his place to legislate. He said the system was "so rife with interconnected problems" that no other approach would work.
Some of the most heated exchanges came when discussing whether the convention system met minimal constitutional standards.
Straub asked whether the state, in creating an elective system, could dictate that Mr. X. or Ms. Y had the power to select candidates for a political office, subject to a final vote by the people.
Rossman argued yes, and Halligan agreed, though more reluctantly. Rossman said there was nothing unconstitutional about a system in which party leaders held sufficient sway over the delegates to alter the outcome of a convention.
Sotomayor responded: "If I choose to join the Totalitarian Party, so be it." But, she wondered if it was something different for the state to create and endorse such a system.
Straub asked, "If you find a way to nullify the right of the electorate to participate in any way, that is not a class to be protected?"
Rossman argued that even though the lead plaintiff, Surrogate Court Judge Margarita Lopez Torres, had failed to win a nomination, other judges had beaten the system.
Hall then quipped that they did so only after their spouses had joined the party leadership, leading to an outburst of laughter. Rossman said that nonetheless, their success was a testament to the system.
Forstadt also stressed the testimony of successful challenger judges -- including Justice Alice Schlesinger, Justice Phyllis Gangel-Jacob and Justice Sheila Abdus-Salaam -- and said Gleeson had ignored their statements.
Straub interrupted and asked, "How do you explain away your own expert's testimony?" One of the defendants' experts, Michael Hechter, had testified, "District leaders effectively select delegates to the judicial convention."
Though the panel spent about an hour and a half questioning the defendants and about a half hour on the plaintiffs, Schwarz hardly got off easy.
As soon as he agreed that a convention system could be constitutional, Straub asked if the plaintiffs were simply upset with the way the system had developed over time.
Sotomayor asked, "Why can't the party say, 'We don't want you to be our standard bearer?'"
Schwarz launched into the story of Lopez Torres, a Civil Court judge popular among voters and the Democratic Party. She had received the most votes -- more than 200,000 -- of any judicial candidate in the 2002 primary for Civil Court, but she could not obtain a nomination for Supreme Court despite seven years of effort. Schwarz said her failure boiled down to her unwillingness to hire as law clerks two people connected with party leaders.
Straub's reply was curt: "That's politics. Where's the constitutional infirmity?"
Sotomayor pressed the issue of constitutional rights. She said the plaintiffs had tended to confuse, in their brief, the right to win with the right to have access to the system.
"You just haven't articulated to me the constitutional right," she said. "If a candidate does not have the right to win, then what is it?"
"It's to not be overly burdened in your efforts to win," Schwarz responded.
In one of his lighter moments, Straub said to Schwarz, "I think you would admit to me, at least you would admit over a drink," that perhaps the system imposed by the Legislature 85 years ago had run its course and was no longer useful in modern-day New York.
"Is that where we are?" he asked.
"I don't know if I would admit it over a drink or otherwise," Schwarz said.
The panel reserved decision.
WHAT MAKES A GOOD APPOINTIVE SYSTEM FOR THE SELECTION OF STATE COURT JUDGES: THE VISION OF THE SYMPOSIUM
THE PARTY'S OVER FOR DICTATOR BOSSES
Daily News, Posted Thursday, June 8th 2006, 12:00 AM
The demise of New York's boss-run judicial-selection system seems guaranteed following an extraordinary federal appeals court hearing at which three distinguished judges zeroed in relentlessly on the fundamentally undemocratic nature of the process. For well over an hour, Judges Chester Straub, Sonia Sotomayor and Peter Hall grilled the lawyer retained by the Democratic Party to defend the constitutionality of New York laws that give the bosses complete control over who gets to be a state Supreme Court justice, depriving the voters of all say in the matter. With one piercing question, Sotomayor exposed the absurdity of the party position: If New York had a Totalitarian Party, would it be constitutional for the Totalitarian Party chief to pick all the judges? Yes, said the lawyer. Hit with the same question, a lawyer from the state attorney general's office agreed the Totalitarians could do as they liked. But what else could the lawyers say? They had to back the Totalitarians because the bosses exert dictatorial control over who gets on the bench in New York through their rigged judicial nominating conventions. In this matter, boss rule is absolute, as Brooklyn Federal Judge John Gleeson concluded in January when he ordered the conventions scrapped and replaced by legitimate elections. On and on the legal pummeling went, delighting an overflowing courtroom. When a defender of the dictators claimed that insurgent candidates have prevailed, an appeals jurist noted that the so-called insurgents happened to be married to party insiders. When the attorney general's representative stood up on behalf of a Legislature that supposedly backed the dictatorial system, the federal judges pointed out, pointedly, that the state Senate voted this year to abolish the conventions in favor of primary elections - in synch with Gleeson's ruling. The vibes were unmistakable: Down with the dictators. Power to the people. We await a decision eagerly. Faso's future Now that Bill Weld has dropped out of the governor's race, John Faso sails forth as the undisputed nominee of a New York GOP tacking unmistakably to starboard. Faso is taking on Eliot Spitzer, the likely Democratic candidate, by promising tax cuts and more tax cuts - which may resonate with voters in the highest-taxed state in the nation. But Faso's red-state baggage, including opposition to abortion, and the narrowness of his message are more likely to limit his appeal in blue-state New York. Weld, who was twice elected governor of Massachusetts, could have argued the fiscally conservative case without getting weighed down by social issues. But party regulars at last week's convention rebelled against 12 years of Pataki triangulation and opted for the more conservative candidates in two races - Faso for governor and former Yonkers Mayor John Spencer to challenge Sen. Hillary Clinton. Weld bowed out rather than swim against the rightward tide. In Faso, the Republicans have a guy with long state service and deep knowledge of Albany's folkways, who, party leaders say, reflects GOP principles. But Faso has slim chance of winning unless he broadens his appeal and reaches out to voters in the vast middle - including the Weld Republicans his party has just snubbed. Good luck to him. No apples for teacher It is with wonder that we present today's New York Knucklehead Award to Thomas Everett. Wonder, because some people's capacity for chutzpah never ceases to amaze. Everett teaches - or used to teach - at Sheepshead Bay High School. In January, he submitted a request for a leave of absence for 60 to 90 days. "The purpose of the leave," he wrote, "is in order to Adjust Personal Affairs. I have problems with the State of New Jersey Judicial System. I must fulfill an obligation to the State." Sounds good, except the "obligation" was a jail sentence. Everett - a disbarred attorney - had been convicted of pilfering more than a million bucks from the estates of two elderly clients. Oops. Everett taught social studies. Funny, we presumed it was creative writing.
January 25, 2008
Blazing a Trail, and Following Her Own Sense of What’s Right
By ROBIN FINN, NY TIMES
HER chambers in the Surrogate’s Court portion of the Supreme Court complex in Brooklyn are neither hushed nor imposing: Homey and aromatic (there is coffee brewing on the snack table) is more like it, with a foldaway bicycle in the corner attesting to this judge’s unstuffy approach to her magisterial duties.
So Surrogate’s Court Judge Margarita López Torres (pictured above), whose challenge to the arcane methodology that New York State uses to select candidates for judicial elections was unanimously rejected last week in the United States Supreme Court, bikes to work from her Park Slope abode? Absolutely. She may be a grandmother three times over, but she’s no stiff. Her notion of fun? Riding a tandem bike through Europe with her husband, Matthew J. Chachere, a legal services attorney.
Once a week, Judge López Torres, who in 1992 became the first Latina elected to the Civil Court in New York City, steps out at the lunchtime salsa classes at the courthouse. It’s her way to ward off the battle of the bulge that is a hazard of spending life on the bench adjudicating the vitriolic squabbles of estate settlements or poring over her own legal challenge, backed by the civic group Common Cause and handled by the Brennan Center for Justice at the New York University School of Law, to the state’s nontransparent way of selecting candidates for judicial seats.
“I am somewhat surprised to find myself in a job where a large part of it is watching over people’s estates,” she says, “because coming from the ghetto in East New York, I didn’t even know what an estate was.”
As for her fight against the State Board of Elections over her thwarted attempt to become a candidate for the State Supreme Court, Judge López Torres is candid: “I wasn’t happy when the U.S. Supreme Court took the case, and after sitting through the oral arguments in October, I didn’t have the feeling that we were going to win. It was a disappointment, but I’m not a cynical person. Usually judicial elections are under the radar, so if there’s one thing my case has accomplished, it’s been to open a dialogue on an open secret.”
The fancifully funky voice of Stevie Wonder, her and her mother’s favorite recording artist, emanates from her computer’s sound system; evocative portraits painted by her brother Hipólito Torres, including one of Judge Beatrice M. Judge, the first female Supreme Court justice in Brooklyn, grace the walls.
Judge López Torres, 56, is graceful as a ballerina, with a cascade of brown hair that nearly reaches her waist. Her soulful eyes pool up when the topic is the Supreme Court’s overruling of her case, a 2006 federal appeals court decision that declared New York State’s judicial nominating system unconstitutional.
And if that seems less than sternly judicial, Judge López Torres does not give a hoot. Shattering stereotypes is her mission, as is defying a system that requires currying favor with party bosses. Three times during her decade as a Civil Court judge in Brooklyn, a job she began with the Democratic Party’s blessing, she tried and failed to obtain the party’s nod to run for a seat on the State Supreme Court.
This failure was linked, she maintains, to a self-imposed glass ceiling: her refusal to bow to the preferences of party leaders in her hiring of court personnel.
“No job has ever been so important to me that I would turn over my principles of what is just and fair and right,” she says. “I felt I should hire people who meet my criteria.”
HER independence was interpreted as defiance; she was perceived as lacking loyalty. The punishment? No support when she ran for re-election: “I was told that a minority person could not win a countywide seat,” she says. “I was also told that I was not a team player. When I became a judge, I took an oath: I am loyal to my oath, not to party leaders.”
This repeated thwarting of her professional ambitions is what, in 2004, induced her to become the lead plaintiff in a lawsuit against the New York State Board of Elections that not only attacked this state’s unique method — via conventions attended by party-approved delegates — for selecting its judicial nominees but condemned it as smacking of patronage politics. When she ran in 2005 for Surrogate’s Court judge (again without the party’s support), she survived a primary recount before going on to win the election and the distinction of being the first Latino elected to that court in the state, and Brooklyn’s first female surrogate judge.
Judge López Torres was born in Puerto Rico and at age 6 moved to New York City with her mother and siblings; her father had arrived first and found work as a busboy.
“Education was the way we were going to get out of the ghetto; my mother always taught us that the ghetto wasn’t who we were and that just because we didn’t have money it didn’t mean we had no worth.”
She participated in the Upward Bound program and, because of a fascination with the activism of the Young Lords, a Puerto Rican rights group, and a television series, “The Storefront Lawyers,” she decided to attend law school at Rutgers University.
“I saw it as a way of being involved in the civil rights movement without fighting against the authorities,” she says. “Though I am a fighter. The U.S. Supreme Court decision leaves me right back here in Surrogate’s Court, but my case is not over. It’s not like all the options have been foreclosed. This is too important an issue to let go.”
Correction: February 2, 2008
The Public Lives column in some editions on Jan. 25, about Judge Margarita López Torres of Surrogate’s Court in Brooklyn, whose legal challenge to the way New York picks its judges was rejected by the United States Supreme Court, referred incorrectly to her background. She was born in Puerto Rico and moved to New York City as a child; she did not immigrate.
The Judge on Row E
A Dissenting Jurist Challenges the Party Bosses
Tom Robbins, The Village Voice, published: October 28, 2003
The most significant race in any borough this election day may be the contest for state Supreme Court being waged in Brooklyn by a judge who dared to defy the county's Democratic Party hacks. Margarita López Torres is the longest-serving judge on Brooklyn's civil court. She was the first Hispanic American woman to serve on that bench, where she won steady acclaim for bringing fairness and dignity to both the family and criminal branches. photo: Cary Conover
Trying to send a message: Judge Margarita López Torres (left) and a supporter, city councilmember David Yassky (right) talk up judicial reform in downtown BrooklynNot even Republicans get elected to Supreme Court in Brooklyn without Democratic Party blessings. But López Torres—denied Democratic endorsement despite efforts on her behalf by all of the borough's leading reformers—is running on the Working Families Party line and stands a fighting chance to win. Should she be elected, it will send a far clearer and stronger message about what's wrong with the judicial selection process than the strained and confusing indictments brought this month against party boss Clarence Norman by District Attorney Charles Hynes. López Torres's experience is an object lesson in how party politics corrupts, although what happened to her would never merit a grand jury charge.
López Torres, 52, would have moved up to Supreme Court long ago had she not run afoul of party leader Norman. She did this by declining to accept the party's choices to serve as her law secretary, an otherwise routine, if little-talked-about, transaction conducted by the Democratic organization. After picking the judges, the party then recommends assistants—whose $50,000-a-year jobs include scant heavy lifting, since the writing of most legal decisions is handled by a small pool of qualified aides in the court's legal department.
One of the party's choices was the fresh-out-of-law-school daughter of Brooklyn assemblyman Vito Lopez. Assemblyman Lopez is no relation to the judge, but he commands major clout within the party for the strength of his Bushwick clubhouse and his access to Albany patronage. The message relayed to the judge by the assemblyman's allies was that if she hired his daughter, she would have a good shot at a prized Supreme Court candidacy. This is the way things work on Brooklyn's bench.
López Torres, however, declined. Another judge was not as choosy and, soon after hiring the daughter, he won the party's nod for the higher bench and was swiftly elected.
Lopez and Norman have both denied that this episode occurred, insisting that the selection of Lopez's daughter was strictly on the merits and that the elevation of the judge who did hire her was a mere coincidence. But another borough Democratic official, Ralph Perfetto, let the cat out of the bag in a letter mailed last month to all of his fellow district leaders.
"Last year I voted for Judge Torres, but this year I checked with two judges who were not candidates this year and four attorneys," wrote Perfetto. "They all labeled her an 'ingrate.' They told me that she courted Vito Lopez to support her for Civil Court, but then decided she didn't need him anymore and denied his daughter a job."
For having the temerity to do this, López Torres became a banned person in the party's highest circles. Her repeated requests to be interviewed for a Supreme Court slot were rebuffed by Norman's secretive judicial-selection panel, which said it accepted referrals only from the county leader himself. Then, up for re-election to her Civil Court post last year, she was denied official Democratic endorsement—the first time in anyone's memory that this had been done. López Torres ran anyway, winning re-election on her own and harvesting more votes than any other candidate.
Amid the headlines of this year's judicial bribery scandal and Hynes's much ballyhooed state grand-jury probe, Norman's organization ceded to some demands from reformers to open up its judicial selection process. It allowed the names of its hitherto secret panel for reviewing candidates to be made public. It also for the first time released the names of those candidates approved. Grudgingly, Norman's panel interviewed López Torres this summer, finding her qualified. But when the party's executive committee met last month to make its selections, the judge won only a handful of votes from rebels.
A few die-hards tried to place her name in nomination before the party's judicial convention, but this too was a doomed effort, producing only a small shoving match between Perfetto and reformer Alan Fleischman, a photo of which ran on the front page of The New York Times as emblematic of high-running tensions in a party under siege.
Despite her outcast status, however, López Torres will still be on next week's ballot. She will be there atop the slate of seven Supreme Court candidates running on Row E, the column allotted to the Working Families Party, the labor-backed activist organization that has cast itself as the progressive conscience of the Democratic Party.
The Democratic Party's official picks for the upper bench are barely visible in these last days before the election. They are presumably doing what Supreme Court candidates always do at this stage of the election process: relying on the party apparatus to turn out voters who will inevitably pull the Democratic lever, as they've done in every judicial contest for decades. But López Torres is doing what she did last year, campaigning on her own at subway stops and senior centers and pressing her literature into the hands of passersby. Last Wednesday morning she was in downtown Brooklyn, at the Court Street IRT station, offering her palm card to commuters and calling out in a soft voice that "It makes a difference who our judges are."
With her was Councilmember David Yassky, who represents Brooklyn Heights and Williamsburg and is one of the few elected Democratic officials to endorse her.
"Margarita is a top-quality judge who I would love to see on the bench," Yassky said as he introduced a constituent to López Torres. "Beyond that," he added, "what is at stake here is how we select judges—the good way or the rotten way. Her election would make a powerful statement."
Yassky said the Democrats should adopt the Working Families method of having an independent panel select its judicial candidates. "I think what they did was show us how it should be done," he said.
Campaigning just a couple of blocks from the courts where she presides, López Torres encountered a steady stream of lawyers. One of them, Eric Poulos, a criminal defense attorney, said he had long been a supporter.
"I met her when I tried a case before her," he said. "I was surprised how civilized and reasonable she was. So many judges run their courtrooms like a jail. She is one of a kind. She doesn't rubber-stamp the authorities, whether they are the city's corporation counsel or the district attorney. She's one of the most independent judges, which is why the machine wanted to get rid of her."
Most observers see López Torres's election as a long shot. The straight-Democratic-ticket voting habits of those who bother to cast ballots in Brooklyn's judicial races are too entrenched to be overcome, they believe. Should she win, however, "it would be pretty amazing," said Assemblyman Jim Brennan, another longtime supporter. "It would mean that it broke through to the general public that a change is needed. It would be a wake-up call to the [Democratic] party's executive committee that they need a significant change in how they're operating."