It's that time of year again in New York City: the Democratic primaries are in the rear-view mirror, and political parties are working through largely opaque processes to determine which candidates will appear on the general election ballot in November for open seats in the judiciary.

The nominees for state Supreme Court to appear on the ballot in November are chosen through a party convention process that has repeatedly come under fire from voters and good-government groups, but is one that the U.S. Supreme Court has upheld as constitutional.

This year, New York's judicial nomination process again came under scrutiny following reports that party leaders in the Bronx and Brooklyn were considering judicial nominations for State Sens. Jeffrey Klein, D-Bronx, and Jesse Hamilton, D-Brooklyn. Klein and Hamilton each received drubbings in the September Democratic primary from left-leaning insurgent candidates. Both were taken to task for their affiliation with the Independent Democratic Caucus, which worked with Republicans to control the state Senate before it was dissolved earlier this year. Klein was also accused in January of forcibly kissing a staffer three years ago, according to several media reports. He has denied that allegation.

This past Thursday, when the New York City county committees came together to pick nominees, Klein, who represents portions of the Bronx and Westchester County, did not get a nomination for a judgeship, according to media reports.

The slate of candidates from the Bronx to be elected or re-elected to the state Supreme Court are acting Supreme Court Justice Ben Barbato, Supreme Court Justice Mary Ann Brigantti, Civil Court Judge Eddie McShan, Civil Court Judge Marsha Michael, acting Supreme Court Justice Julio Rodriguez III, acting Supreme Court Justice Llinét Rosado, Civil Court Judge Elizabeth Taylor and Supreme Court Justice Robert Torres.

In Brooklyn, there are seven openings on the state Supreme Court, and the borough's Democratic Party has tapped four sitting state Supreme Court justices to appear on the ballot for re-election to their seats and three Civil Court judges who won the party nomination in the primaries to run for the three remaining Supreme Court seats.

Those three seats may open up because Appellate Division, Second Department Justice John Leventhal; Appellate Term, Second Department Justice Marsha Steinhardt and Brooklyn Supreme Court Justice Larry Martin have reached the mandatory retirement age of 70 years old, said party spokesman Bob Liff.

Leventhal has applied for recertification to his seat, said Aprilanne Agostino, the court clerk for the Appellate Division, Second Department, as have Martin and Steinhardt, said Office of Court Administration spokesman Lucian Chalfen.

It is common for Civil Court judges to be designated as acting Supreme Court justices, as is the case with two of the judges nominated to move up to be full-fledged justices: acting Brooklyn Supreme Court Justices Devin Cohen and Lisa Ottley. Brooklyn Civil Court Judge Ingrid Joseph is the party's third nominee for the state Supreme Court.  

This leaves Brooklyn Democratic Party leaders with the task of “backfilling” the three open Civil Court seats. The party is set to pick nominees for those seats on Thursday when it convenes for a meeting to adopt rules and elect committee officers.

Frank Seddio, the Brooklyn Democratic Party's county leader, told City & State that he was unaware of any effort to put Hamilton, who represents neighborhoods in central Brooklyn, on the bench.

Sources with knowledge of the process in Brooklyn say that Anne Swern, a former Brooklyn prosecutor who came in second last year in a six-way race for Brooklyn District Attorney, will be put forward as a nominee for one of the Civil Court seats.

Reached by phone, Swern neither confirmed nor denied that she was under consideration for the bench, but declined to comment further.   

New York's party-controlled judicial nomination system has weathered criticism in the past, including from federal judges.

For one, the system often results in high-performing attorneys getting passed up for opportunities to serve on the bench because they aren't close with party leaders, said Dennis Hawkins, executive director of the Fund for Modern Courts, which opposes the party-led system for choosing judicial candidates.

“A lot of people never get the opportunity because they don't have the party connections,” Hawkins said.

But the system is required by the state constitution, and thus be would be difficult to change. The avenues for doing so include a constitutional convention or by a resolution passed by both chambers of the state Legislature to put a proposed change to the voters.

And party leaders are loathe to change the system, Hawkins said, as judgeships on the state Supreme Court are plum jobs that can prove to be potent political currency for party bosses: the justices serve 14-year terms and pull down six-figure salaries.

In 2004, Margarita Lopez Torres, a Brooklyn Surrogate's Court judge who was then a candidate for state Supreme Court justice, filed suit against the New York State Board of Elections to challenge the party-led judicial nomination process. Ruling in the case, then-U.S. District Judge John Gleeson of the Eastern District of New York sided with Lopez Torres, ruling that the system is unconstitutional and finding that “labyrinthine, burdensome” processes stand in the way of would-be judicial candidates who do not receive the blessing of party bosses.

The U.S. Court of Appeals for the Second Circuit upheld Gleeson, but in 2008 the U.S. Supreme Court unanimously reversed the lower courts, finding that New York's system is not unconstitutional.

“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 for the court.   

 

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