Western New York voters will recognize a familiar election scenario this fall: a ballot offering no choice for State Supreme Court justice.
The 2017 judicial election was essentially decided a few days ago by Erie County’s Democratic and Republican chairmen when they preliminarily “cross-endorsed” Republican incumbent Erin M. Peradotto of the Appellate Division along with Democratic Orchard Park Town Justice Lynn M. Keane.
Ditto for Erie County Court following a similar arrangement for Democrat Susan Eagan, a Buffalo city judge.
The Supreme Court cross-endorsements now continue a pattern in which roughly half – 25 of 51 judicial nominations since 1995 – were decided by a pair of party leaders who then gain rubber-stamp approval from the judicial nominating conventions they control.
Neither Erie County Republican Chairman Nicholas A. Langworthy nor his Democratic counterpart, Jeremy J. Zellner, say they are comfortable with the convention system that often excludes voters from any real say in State Supreme Court elections. But after the U.S. Supreme Court declared it constitutional in 2008, they note no Albany clamor for change.
“The whole process is flawed,” Zellner said. “Until and unless people want to talk about it, it’s not going to change.”
Langworthy calls the system an “inherited process.”
“I didn’t write or design the law,” he said, “but we live under it.”
Both chairmen emphasize that circumstances could alter their agreement between now and the judicial nominating conventions in September, but that they expect the arrangements to continue.
Peradotto, 56, appears to hold the central role in the cross-endorsements. She sits on the court’s prestigious Appellate Division, and in the past has been recommended by a special screening panel for gubernatorial appointment to the Court of Appeals. Though an appellate justice, she technically remains a Supreme Court jurist whose first 14-year term will expire at the end of this year and must therefore run for re-election to return in 2018.
“I feel very strongly about an appellate level judge who could someday be a Western New York representative on the Court of Appeals,” Langworthy said of Peradotto. “I certainly heard loud and clear from her supporters that she should be a top priority.
“If the convention were tomorrow,” he added, “I would be well prepared to make that happen.”
Langworthy also characterized Keane as "certainly coming from a distinguished family with her own record of public service."
Zellner, meanwhile, faces a kind of political “do over” following Keane’s unsuccessful bid for Supreme Court in 2016. As a Democratic candidate in a year with no cross-endorsements, Keane lost after the Working Families Party denied her its expected endorsement.
The minor party inserted a “placeholder” lawyer from downstate in her local slot after it awaited the outcome of a Democratic primary there.
Similar to Buffalo Conservatives nominating a placeholder lawyer on this year’s Buffalo mayoral ballot until the results of the Democratic primary are determined in September, Keane got bumped from the often crucial minor party slot.
Zellner noted that the 2016 placeholder received about 25,000 votes on the Working Families line, costing Keane an election she lost by about 5,800 votes. The chairman labeled the experience a “raw deal.”
“She was undermined by the process,” he said. “I believe she would have been the top vote-getter.”
According to party sources, Keane, 49, became a priority. Her husband, Michael J. Keane (son of the late Assemblyman Richard J. Keane), also was appointed to the top deputy position by new District Attorney John J. Flynn Jr., the endorsed candidate of Erie County Democrats. Board of Elections records indicate Keane and her husband at one point had loaned her campaign $50,000, with Zellner adding he had taken that into account.
The selection of Keane and Peradotto ends what had become an active campaign for several judicial aspirants. They included Buffalo City Judge Amy C. Martoche, a Democrat who party sources say was approaching the $200,000 mark in her fundraising.
Other potential candidates included Republicans Gerald J. Greenan and Kenneth F. Case, an Erie County judge, as well as Democrat Steve M. Cohen.
Party leaders endured criticism in 2015 when they cross-endorsed Emilio Colaiacovo, a party stalwart who for years handled much of the local GOP’s election law issues. In turn, they granted a guaranteed election to then-District Attorney Frank A. Sedita III, despite criticism over the Democrat’s reluctance to prosecute election law violations and to pass on some homicide cases picked up by state and federal prosecutors.
Langworthy notes that party leaders attract equally strong criticism when they pass on cross-endorsing, recalling the cases of two respected Democrats, Eugene M. Fahey and the late Kevin M. Dillon in 2010. He also came under scrutiny in 2014 when incumbent Republican Frederick J. Marshall failed to win a cross-endorsement while non-incumbent Paul B. Wojtaszek did.
“In 2010 there was no agreement, and there was an outcry then, too,” Langworthy said. "You hear from people on both sides of the equation, depending on the circumstances."