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Judicial fallout from a ‘stupid law’

Judicial contests – or lack of them – dominated politics around here in recent days after Erie County’s Democratic and Republican chairmen appeared to have settled the State Supreme Court situation. They are expected to “cross endorse” Democrat Frank Sedita III and Republican Emilio Colaiacovo, guaranteeing 14-year terms for both.

Sometimes those pesky elections, in which voters get to express their preferences at the polls, just get in the way. So the chairmen take care of that.

But while good government types and online commenters all call for the system to change, it won’t.

Back in 2006, the Brennan Center for Justice at New York University Law School filed suit in Brooklyn federal court challenging New York State’s system of judicial nominating conventions. Judge John Gleeson then declared it unconstitutional, accepting the argument that the conventions are essentially controlled by party bosses.

And when a federal appellate court later upheld Gleeson’s decision, New York’s party bosses got nervous. Legislative leaders in Albany actually began discussing ways to improve the system. It looked like something might change.

But in 2008 the case ended up before the U.S. Supreme Court, which unanimously reversed the lower courts and said the system was OK after all.

Justice John Paul Stevens commented at the time that the court’s ruling did not necessarily endorse New York’s judicial conventions or contradict Gleeson’s view.

“I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions,” Stevens wrote, “the Constitution does not prohibit legislatures from enacting stupid laws.”

Now New York’s legislative leaders fear no court decision, and change is no longer on the table. In heavily Democratic New York City, party bosses rule judicial nominating conventions with an iron fist. Their “recommendations” to the conventions remain tantamount to election.

And in New York State, the Big Town rules. Always has; always will. That’s why nothing will change.

• It is interesting to note that last week the Erie County Bar Association rated Sedita for Supreme Court even though the district attorney has not declared his candidacy and did not apply for a rating. Shari Jo Reich, chairwoman of the bar association’s Judiciary Committee, explained the organization will consider rating potential candidates “rumored” to be running.

In Sedita’s case, the bar appeared to recognize the DA could conceivably remain silent right up to the night of the judicial nominating convention late this month. Reich said her committee felt the need to issue its ratings for all potential candidates before the convention formalities.

Sedita received a “qualified” (the lowest possible positive rating) as did Republican Colaiacovo, who applied for the bar’s review.

In a similar situation last year under former Chairman William Kita, the committee did not issue a pre-convention rating for then-Democratic Elections Commissioner Dennis Ward, whose plans to run for Supreme Court were known throughout most of the Western world. Kita did not return a call seeking comment.

• Primary? What primary?

With no major countywide or citywide primaries dominating the scene, the airwaves are quiet – too quiet. Aside from a few judicial spots, the general populace was spared the normal onslaught of endless political ads this primary season.

• Last week, the Politics Column noted the lack of activity surrounding the joint state/federal investigation of political operative Steve Pigeon, the former Erie County Democratic chairman. We noted nothing has happened three months after the State Police, FBI and agents of Attorney General Eric Schneiderman searched the homes of Pigeon, congressional aide Chris Grant and former Deputy Mayor Steve Casey.

It is important to add, however, that no state or federal grand jury appears to be investigating the case. Limbo lingers.