By JODI SOKOLOWSKI
Buffalo Law Journal

The U.S. Supreme Court unanimously upheld New York's delegate-based convention system for selecting trial-judge candidates Wednesday, saying it does not violate the First Amendment.

Under the state's constitution, candidates for New York Supreme Court are nominated by convention delegates, who are elected by primary voters. Generally unopposed, nominated candidates then run on the general-election ballot.

"A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform," Hon. Antonin Scalia wrote for the court.

The decision reverses opinions by the 2nd U.S. Circuit Court of Appeals and a federal district court.

"New York state has thrice (in 1846, 1911, and 1921) displayed a willingness to reconsider its method of select-ing Supreme Court justices. If it wishes to return to the primary system that it discarded in 1921, it is free to do so; but the First Amendment does not compel that. We reverse the 2nd Circuit's contrary judgment," Scalia wrote.

Hon. Margarita Lopez Torres, Kings County Surrogate's Court judge, became the lead plaintiff in the lawsuit after Democratic leaders in Brooklyn blocked her from getting the party's nomination for a Supreme Court judgeship. She said the leaders turned against her shortly after her election as a civil-court judge when she would not hire people they recommended.

"As the concurrences by Justices Stevens and Kennedy make clear, the Supreme Court's decision should not, by any means, be read as endorsing New York's flawed system," Torres said in a prepared statement.

The Brennan Center for Justice at New York University School of Law, together with co-counsel Arnold & Porter LLP and Jenner & Block LLP, represented Torres.

The plaintiffs are considering further litigation options, said Frederick Schwarz Jr., senior counsel to the Brennan Center.

He'd argued that New York has a unique system that is dominated by party leaders rather than rank-and-file voters. The petitioners contended that the system, which the state Legislature adopted 86 years ago, was specifically designed to take the place of expensive and unseemly primaries for judges and is simply a form of representative democracy well within the bounds of the Constitution.

"This victory is a complete vindication of New York's method of judicial selection, which for nearly a century has produced one of the nation's leading judiciaries. We are deeply gratified that a unanimous Supreme Court agrees ... that New York's judicial convention system is perfectly constitutional," said Andrew Rossman, New York-based partner with law firm Akin Gump Strauss Hauer & Feld.

Rossman argued the case on behalf of the defendants: the New York State Board of Elections, New York County Democratic Party, New York State Republican Committee, New York State Board of Elections, New York Attorney General and Association of Justices of the State of New York.

Local response

Reaction to the decision from Western New York political and bar leaders was mixed.

Erie County Republican Committee Chairman James Domagalski said he's not "a fan" of the current system, but also not sure an alternative, such as merit selection or open primaries, would be much better.

"I think the system is too political, but at least it's democratic," he said. "As much as the current system isn't good, I'm not sure anyone has presented a better system at this time."

Merit selection is too "elitist," said Hon. Timothy Drury. Erie County Democratic Committee Chairman Leonard Lenihan said open primaries are too expensive for many candidates.

"The system we have allows us to promote a more diverse ticket," he said. "I think that would be one of the downsides of the primary system - fewer diverse members would be on the bench."

Domagalski added that open primaries would make it easier for wealthy lawyers to "buy seats."

"Merit selection would be taking (the choice) away from the people and giving it over to various interest groups," said Drury. "And in primaries, money dictates much of what happens."

Drury tried to get an endorsement for his current seat as a state Supreme Court judge three times. He said his 10 years as a trial lawyer, seven years as a city judge and 19 as a county judge gave him adequate experience.

"I felt the delegates knew me fairly well. I felt it was a legitimate process," he said. "No one has come up with a foolproof and satisfactory alternative to what we have now."

The next step

The Legislature could study how other states conduct judicial-candidate selection and then possibly present a bill to alter the system.

However, the change is likely to come from top-ranking members, not through a grass-roots movement, Lenhian said.

"It would require the leadership of the state Legislature to propose a change," he said.

Both local major-party leaders said they're not opposed to change, but want to ensure a fair, democratic process for years to come.

"While I'm certainly not ecstatic that judicial conventions (are allowed to be) continued," Domagalski said, "it's also not the boogie man that people think it is."