From the New York Times:
Justices Back N.Y. Trial Judge System
By DAVID STOUT
Published: January 16, 2008
WASHINGTON — Sweeping aside complaints that New York State chooses its trial judges through an antiquated, patronage-tainted system that favors party cronies and gives voters no real say, the United States Supreme Court on Wednesday upheld the state’s unique system.
Overturning findings by a federal district judge in Brooklyn and the United States Court of Appeals for the Second Circuit, the justices held that New York’s selection of nominees for State Supreme Court by means of party conventions is both constitutional and reasonable.
“Party conventions, with their attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an accepted manner of selecting party candidates,” Justice Antonin Scalia wrote, in a decision that provided ample reminders that judges are politicians as well as somber, black-robed jurists.
The justices rejected a lawsuit brought by Margarita Lopez Torres, a Brooklyn Surrogate Court judge who, as an elected Civil Court judge, tried unsuccessfully to get the Brooklyn Democratic Party’s backing to run for State Supreme Court. She was apparently turned away by party leaders after refusing to make patronage appointments to their liking.
In New York, the Supreme Court is not the state’s highest court, but rather a district-level trial court; its judges are elected for 14-year terms, often without opposition. The highest tribunal in New York is the state Court of Appeals.
The lower court rulings that were voided by the justices on Wednesday had barred the New York State Board of Elections from using the judicial convention system, directing the board to hold primaries instead, until the State Legislature could set up a new selection system.
The high court’s rejection of those decrees was not a surprise, given that when the case was argued last Oct. 3, several justices voiced skepticism of the lower courts’ conclusions. The lower courts had ruled that picking State Supreme Court nominees by party convention violated the First Amendment right of political association by excluding not only the voters but also judicial candidates who are not anointed by party elders from the process. The high court found instead that the Constitution cut the other way, in favor of the state system.
“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,” Justice Scalia wrote.
He noted that nothing prevents people with judicial aspirations from wooing party leaders. Nor does anything compel the delegates chosen in party primaries in each assembly district to vote the way the party leaders desire, although they almost always do. Judicial aspirants are free to try to persuade the delegates to vote for them.
And if they cannot persuade the delegates, they are free to try to gather the necessary signatures (generally several thousand, depending on the district) to get their names on the ballots despite the lack of party backing, Justice Scalia noted.
“Selection by convention has been a traditional means of choosing party nominees,” Justice Scalia wrote. “While a state may determine it is not desirable and replace it, it is not unconstitutional.”
Theodore B. Olson, the lawyer for the New York State Board of Elections who argued in favor of the convention system before the justices, told them the state had adopted the convention system decades ago, after experience with party primaries “spawned unseemly, expensive, and potentially corrupting fund-raising by judicial candidates.”
Justice Scalia and the other members of the high court were not persuaded by arguments that “one-party rule” effectively denied some people “a fair shot” at a judicial nomination.
“The reason one-party rule is entrenched may be (and usually is) that voters approve of the positions and candidates that the party regularly puts forward,” Justice Scalia wrote.
Andrew Rossman, a New York City lawyer who argued the case on behalf of the Democratic Party with Mr. Olson, called the ruling “a victory for the judiciary of New York” and said it would foster “a better and more independent judiciary.”
But Frederick A. O. Schwarz Jr., who defended the lower courts’ findings before the justices, said that since the present system began in 1921, “New York has compiled an 87-year record of anti-democratic exclusion, unaccountability and corruption in judicial selection.” Mr. Schwarz said he still hoped for legislation that would end the convention method.
Judge Torres herself said it was clear that, despite the outcome, “the Supreme Court’s decision should not, by any means, be read as endorsing New York’s flawed system.”
The suit that led to Wednesday’s ruling was begun in 2004, following scandals in Brooklyn, where allegations of bribery, corruption and cronyism cast an unflattering spotlight on the way judges are picked. On Jan. 27, 2006, Federal Judge John Gleeson of Brooklyn declared the selection system “opaque and undemocratic” and said it violated the rights of voters.
Justice Anthony M. Kennedy, joined by Justice Stephen G. Breyer, wrote separately to express the hope that better ways of picking jurists will evolve, and to emphasize their concern over the shabby clubhouse practices that sometimes accompany the process now.
“Even in flawed election systems, there emerge brave and honorable judges who exemplify the law’s ideals,” Justice Kennedy wrote. “But it is unfair to them and to the concept of judicial independence if the state is indifferent to a selection process open to manipulation, criticism and serious abuse.”
And Justice John Paul Stevens, joined by Justice David H. Souter, wrote that there was a distinction “between constitutionality and wise policy,” and that they did not necessarily disagree with the lower courts’ findings of “glaring deficiencies” in the present system, despite its embrace by state lawmakers.
But, Justice Stevens concluded, “as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: ‘The Constitution does not prohibit legislatures from enacting stupid laws.’ ”

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