New York County Lawyers Association Opposes Senator Stewart-Cousins Effort to Eliminate Merit Selection of Judges

NYCLA opposes the efforts of Andrea Stewart-Cousins, the State Senate majority leader, to jettison merit selection of Judges on the New York State Court of Appeals, the State’s highest court.  We strongly support the continuation of the present system of merit selection.

We are certainly aware that Governor Hochul’s nomination of Justice Hector Lasalle to be Chief Judge on the Court of Appeals was controversial.  Indeed, we commented on the unfairness of the attacks on Justice LaSalle.  Justice Lasalle, the presiding justice on the State’s Second Department, was not confirmed by the State Senate; this was followed by the nomination earlier this week of Judge Rowan Wilson, currently an Associate Judge on the Court of Appeals, to be the Chief Judge.  While we criticized the manner in which the State Senate handled Justice Lasalle’s nomination, we also complimented Judge Wilson’s nomination, believing him also to be a worthy and qualified nominee.

In the wake of that controversy, Ms. Stewart-Cousins has proposed to jettison the current merit appointment system in favor of a system where the Governor could appoint whomever he or she wanted, subject to confirmation by the State Senate, just as justices of the Supreme Court of the United States are nominated and confirmed right now.  That system is subject to politicization, contributing to a loss of confidence in the Supreme Court and the process by which Justices of that Court are selected.  We fear the same result here in New York.

Senator Stewart-Cousin’s proposal ignores the weight of research and experience with judicial nominating commissions. Thus, after a review of the research, one influential publication has urged states to adopt precisely the system that New York already has – a nominating commission system, followed by gubernatorial appointment.  This system provides an effective mechanism to “set aside political considerations” and “provide a layer of insulation from the normal operation of politics.”

States should utilize judicial nominating commissions, independent bodies tasked with evaluating judicial candidates on nonpolitical criteria and producing a shortlist of names from which the governor can choose. Because the governor does not control the creation of a commission’s shortlist, judicial nominating commissions can provide a layer of insulation from the normal operation of politics, while still empowering a politically accountable actor to make the final determination. Moreover, studies of judicial nomination commissions, which are already used in some form in many states, suggest that they have often been successful in setting aside political considerations and constraining governors’ discretion.

State Judicial Selection: Reforms to Promote a Fair and Independent Judiciary, 103 Judicature No. 1 (Bolch Judicial Institute. Duke Law School 2019) https://judicature.duke.edu/articles/state-judicial-selection-reforms-to-promote-a-fair-and-independent-judiciary/^[1]

New York’s experience easily confirms the conclusions above.  Historically judges in the Court of Appeals were elected.  In 1977, however, that system was changed by state constitutional amendment after one candidate spent large amounts of personal cash to get himself elected to the Court of Appeals (which was perceived at the time to be undesirable).  The current system provides for a Commission on Judicial Nomination, consisting in large part of prominent members of the bar, to nominate seven possible “best qualified” candidates from any potentially interested applicants, with the Governor to pick his or her nominee off from of that list, subject to confirmation by the State Senate.  That system is intended to, and generally does, produce nominees who are well-qualified on the merits to sit on the Court of Appeals.  Indeed, for the 50 years prior to recent controversy about Judge Lasalle, the system has worked well, without serious controversies or problems.  No nominee for the Court of Appeals was rejected by the Senate between 1977 and the rejection of Justice LaSalle this year. 

 A single arguably controversial nomination provides no reason to change a system that has worked so well for so long.  Many qualified judges have been selected for one of the most important common law courts in the land through the existing merit selection process which we strongly believe should be maintained.  We are especially reluctant to jettison a system we believe has worked well in favor of one just like the system under our federal constitution which has become so heavily politicized and criticized.  

We are aware that Ms. Stewart-Cousins’ proposal would require an amendment to the State Constitution, and that this cannot happen quickly.  As a result, there will be ample time for public debate.  We are joining that debate at the outset by stating our belief, however, that jettisoning merit selection for the State’s Court of Appeals is a fundamentally bad idea.

[1] See also Alicia Bannon, Choosing State Judges: A Plan for Reform, 2018 Brennan Ctr., https://www.brennancenter.org/sites/default/files/publications/2018_09_JudicialSelection.pdf.