To The Readers Of The Metropolitan Corporate Counsel:
Recently, New York's judges have played an unaccustomed role in litigation - as litigants. Four cases brought by New York judges have highlighted aspects of the judicial system that did not traditionally receive intense public scrutiny: how New York selects and compensates its Supreme Court Justices. Taken together, they paint a troubling picture of the pressures on people who seek to serve as judges.
The first case is N.Y. State Board of Elections v. Lopez-Torres , 552 U.S. ____ (2008). The District Court opinion in Lopez-Torres contained a litany of problems with the convention system for nominating New York Supreme Court Justices. The Second Circuit affirmed the District Court's holding that the system was unconstitutional. The United States Supreme Court reversed the lower courts, but the majority opinion studiously refrained from commenting on the factual findings of the District Court opinion. The two concurring opinions were far less circumspect. Justices Stevens and Souter left no doubt of their views:
Our holding . . .should not be misread as endorsement of the electoral system under review, or disagreement with the findings of the District Court that describe glaring deficiencies in that system and even lend support to the broader proposition that the very practice of electing judges is unwise. But as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: "The Constitution does not prohibit legislatures from enacting stupid laws."
Lopez-Torres has eliminated the prospect of judicially mandated replacement of the convention system, but we can still try to correct its "glaring deficiencies." In 2006, the New York County Lawyers' Association issued A Roadmap to Reform , which articulated six core attributes that were important for judicial selection mechanisms: independence, accountability, diversity, legitimacy, transparency and integrity. A Roadmap to Reform spelled out a number of proposals for changing the convention process to better achieve these six core attributes. Similar proposals were also made by the Commission to Promote Public Confidence in Judicial Elections, better known as the Feerick Commission. It is time to revisit these and other proposals in order to improve our judicial selection system. As Justices Kennedy and Breyer stated in their concurring opinion in Lopez-Torres , "If New York statutes for nominating and electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now."
Three cases concern judicial compensation. The current base salary for New York judges is $136,700, less than large firms pay relatively junior associates. There has been no general increase in state judges' salaries since 1999. Judges have not received cost-of-living increases sufficient to maintain their purchasing power. Historically, judicial pay raises have been linked to pay raises for state legislators. For obvious reasons, Chief Judge Kaye and others have argued that judicial and legislative pay increases should not be coupled, but that a non-political commission should determine judicial pay increases. After political negotiations over a judicial pay raise collapsed for the fourth straight year, Larabee v. Spitzer, Maron v. Silver and Kaye v. Silver were filed. All seek to compel the legislature to increase judicial salaries.
Taken together, Lopez-Torres and the judicial salary cases pose a crucial question: How much is it reasonable to expect talented jurists to sacrifice in order to be a judge? How can we maintain a talented bench, equipped to deal with complex litigation, if candidates must first run a political gauntlet to secure their nomination, then raise funds for a general election campaign, and finally look forward to compensation that is not commensurate with their talents from the outset, and will lose purchasing power over time?
Ann B. Lesk