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A fairer process for picking judges

Lynn Clarke has practiced law for 22 years, half that time as an attorney in State Supreme Court. As a one-time candidate for County Legislature, she paid her dues and was no stranger to politics.

So in 2004 and again in 2005, Clarke ran for Supreme Court, traveling the eight counties of the Eighth Judicial District and lining up significant support from all over the Democratic Party. She was rated "well qualified" by the Erie County Bar Association and felt she could make as good a case as anyone.

But Clarke soon discovered that qualifications didn't rate in a system that recognizes political juice more than professional experience. When various Democratic factions began clawing at Chairman Len Lenihan prior to last September's judicial nominating convention, she realized the real criteria for how Supreme Court candidates were chosen in Western New York.

Instead of experience, knowledge of the law, judicial temperament and education, it boiled down to satisfying some political club or faction.

"What goes to the heart of what kind of person is put on the bench was not necessarily given consideration," she said. "That concerns me a lot."

Clarke is a big girl. She knew the game when she entered it and played by its rules. But she reflected on her experience following U.S. District Judge John Gleeson's ruling in Brooklyn a few days ago that scrapped the judicial nominating convention system that sent only boss-approved candidates to Supreme Court for almost a century.

The judge ruled that a lawsuit filed by the Brennan Center for Justice at New York University Law School demonstrated "that local major party leaders -- not the voters or the delegates to the judicial nominating conventions -- control who becomes a Supreme Court justice and when.

"The result is an opaque, undemocratic selection procedure that violates the rights of the voters and the rights of candidates who lack the backing of the local party leaders," he wrote.

He then ordered that Supreme Court candidates participate in primaries until the State Legislature revamps the system.

A 2002 series of articles in The Buffalo News underscored Gleeson's decision in ugly detail. The stories, which Brennan Center attorney Jeremy Creelan said helped spur the suit, outlined how candidates were forced to pay tens of thousands of dollars to party organizations to even merit a look from the all-controlling chairmen. It even showed that cross-endorsed judicial candidates -- those given bipartisan backing -- would raise the money and spend it on campaign "consultants" who were headquarters favorites.

And the series showed how government employees, county committee members and cousins of the chairmen -- all beholden to the party -- dutifully followed orders in shams called judicial nominating conventions.

To their credit, party leaders like Lenihan and Republican Bob Davis cleaned up the system to the best of their ability. Candidates no longer were forced to pay $7,500 to headquarters for "convention expenses," the parties established screening committees, and Lenihan and Davis eagerly supported reforms.

But Clarke's experience demonstrated that while the egregious offenses of the past were no more, it was inevitable that politics still played a huge role. Though the chairmen considered qualifications as best they could, Clarke learned that candidates with the right political muscle ended up on the ballot. It's not that those candidates weren't qualified. It's just that they were politically wired.

Clarke is thrilled with Gleeson's ruling. If she runs again, she feels that voters and not political factions will make the choice.

"Now it will be more in the candidate's hands, and the voters," she said. "It will be the people who judge."

e-mail: rmccarthy@buffnews.com

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