The practice of selecting judges by popular election, commonplace among the American states, has recently come in for a good deal of criticism, much of it well-founded. But if popular election of judges is a bad method of judicial selection, what ought to replace it? Opponents of judicial election typically treat gubernatorial appointment as self-evidently better. New York’s experience with gubernatorial appointment to its highest court, the Court of Appeals, suggests that greater caution is in order. Although New York’s current method of selecting Court of Appeals judges was designed to be wide open and based entirely on merit, the selection process, as it has actually evolved in practice, is neither. It has instead degenerated into a fundamentally closed competition among a very small number of sitting judges of the intermediate state appeals court, making it a process not of judicial appointment, but of judicial promotion. Worse, unlike appointees to the U.S. Court of Appeals for the Second Circuit, which draws from essentially the same lawyer population, few appointees to the New York Court of Appeals have previously distinguished themselves in arenas other than judicial service on lower state courts. Whereas Second Circuit appointees overwhelmingly have significant prior accomplishments in legal practice and executive branch service, the judges of the New York Court of Appeals are distinguished mainly for having worked their way up through the state judiciary. Perhaps that is why the New York Judicial Nominating Commission received only seventeen applications for Chief Judge of New York in 2008, when the position last became vacant.
Buffalo Law Review: The Docket
James A. Gardner,
New York’s Inbred Judiciary: Pathologies of Nomination and Appointment of Court of Appeals Judges,
Buff. L. Rev. Docket
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/209