State judges probably will be selected through a political convention again this year, despite a federal decision two weeks ago outlawing the process.
An appeal of the decision will be filed soon, and that is expected to result in a stay of the order that could push the matter's resolution past the fall elections.
In the next two weeks, an influential group of State Supreme Court judges, the state Republican Party, Manhattan Democratic Party and the state Board of Elections will file a joint appeal of U.S. District Judge John Gleeson's decision ordering judicial elections this year be done through a primary system, a lawyer for the judges said Tuesday. Word of the appeal came one day after a commission appointed by the state's chief judge said the method of selecting judges was broken and in need of serious reform.
Gleeson ruled the convention system for picking judges is unconstitutional. Critics have said it amounts to a backroom way to pick judges.
But Joseph L. Forstadt, a Manhattan lawyer who represents the Association of Supreme Court Justices, said primaries for Supreme Court judges would force sitting jurists to have to suddenly raise large amounts of cash for the party contests. "Supreme Court judges are elected for 14-year terms and they are, therefore, removed from politics. What this court decision does is throw them back into the political system," he said.
Forstadt said judges would end up having to raise money for primaries from lawyers and others, a situation that could throw their judicial decisions into doubt. For open primary contests, it would result in a popularity contest decided by who raises the most money, he said. "It casts the entire system into the most unattractive political light," he said.
The appeal of the case was confirmed by the state Board of Elections. A spokesman for Attorney General Eliot Spitzer said a notice of the appeal is expected to be filed as soon as today.
"It is no exaggeration that confidence in government and confidence in the judicial branch is at stake here," Court of Appeals Chief Judge Judith S. Kaye said Monday as she accepted a report by a commission she asked to devise reforms to the judicial selection process. The panel said reform is needed, but that a primary system is not the answer in a state without public campaign financing.
"We determined that primaries pose a great risk of attracting substantial increases in partisan spending on New York State judicial campaigns, which would serve to further undermine confidence in the judiciary," the Commission to Promote Public Confidence in Judicial Elections said.
Instead, it said the current system -- which features regional political conventions where judicial candidates are selected -- should be reformed to make it fairer for challengers to overcome the advantages party bosses now give to anointed candidates. It called for various rule changes to ensure more information is given out about all candidates, ways for all candidates to be heard by the delegates and increasing the terms of convention delegates from about one week now to three years.
But a lawyer who sued the state over the judicial convention process said the panel's recommendations fail to involve a direct vote by registered voters -- a requirement set forth last week in Gleeson's ruling. Jeremy Creelan, who represented the Brennan Center for Justice at the New York University Law School, said Gleeson found the nominating process must provide voters with a meaningful role and real choice among candidates.
"It's illusionary to think that a system that preserves party leaders' ultimate control over the selection process will be fairer to candidates or voters through tinkering with that system. The bottom line is voters in an elective system must have the choice, and the judicial convention system does not provide voters with that choice," Creelan said.