http://www.judicialreports.com/2007/10/the_election_scam_machine.php
By Jason Boog
jasonboog@judicialstudies.com
Posted 10-31-07
Supreme Court candidate Paul G. Feinman worked the phones
and lobbied judicial nomination delegates earnestly. Delegate Esther Yang did
her homework and, with a majority of others, concluded that he was the right
candidate. But, no matter how honorable the participants, the system makes
everyone appear craven.
Voters in New York City might as well close their eyes when
they vote for state Supreme Court justices this year — the decision was already
made, without their input.
In September, the Supreme Court candidates for all of the
state’s 12 judicial districts were quietly chosen during conventions that
barely even registered in the local press. As these candidates are ceremonially
ratified in voting booths this week, it is worth considering how they earned
their coveted spots on a nominal ballot.
In New York City, the entire process hinges on the decisions
of the Democratic Party’s judicial delegates, rather than voters. The number of
delegates shifts each year based on a complicated equation of voter-participation
in each of the Assembly Districts in the county — this year counted 128
delegates at Manhattan’s Democratic judicial convention.
In total, there are six Supreme Court vacancies available in
the five boroughs. There are six additional incumbent Supreme Court seats, but
they will be filled in uncontested races, thanks to party control of the
nominating process.
In Manhattan, Acting Supreme Court Justice Paul Feinman was
chosen at the convention to fill the lone vacancy on the ballot. All his opponents
at the convention withdrew their candidacy once they realized Justice Feinman
had the majority of delegate votes, and they will return to their old judicial
posts.
One of those delegates, community activist Esther Yang,
described how local judges attempted to sway the opinions of the judge pickers.
While nonjudicial candidates are preparing ad campaigns and
visiting constituents, judges court these surrogate voters like well-heeled
suitors.
“Honestly, the judges really want the delegates to know them,”
Yang recalled. “They invited the delegates and all the alternate delegates [to
special events]. I pull them aside and ask them questions. Every one of them
called my cell phone, every one of them reached out for me. They work hard for
that. Everyone offered me coffee or lunch personally. They all sent out the
resumes.”
Yang joined two other delegates from the Samuel J. Tilden
Democratic Club, a political organization she joined two years ago during an
unsuccessful bid for the New York Assembly. Club leaders chose the delegates
during an informal vote at the clubhouse.
CLUBBING
Every election year, political clubs around the city send
their own handpicked delegates to the convention. During the summer months,
judicial candidates traditionally hold parties at homes or restaurants with the
express intention of meeting the delegates and alternates personally. Yang
attended eight of these events, one for each candidate.
According to The 2007 Judicial Campaign Ethics Handbook,
judges are permitted to raise money and interact with voters and delegates for
election bids during a window period commencing nine months prior to the
earliest of the following dates: the date of formal nomination; the date of a
party meeting at which the candidate would be endorsed; or the date that the
petition process begins.
All the activities described in this article occurred within
that timeframe this year.
Nevertheless, nearly two years ago, U.S. District Judge John
Gleeson ruled in Lopez Torres v. New York State Board of Elections that New
York’s judicial convention system gave party bosses too much control, deciding
that Margarita Lopez Torres and a handful of other frustrated judicial
candidates had been denied a fair shot at the ballot.
Gleeson ordered the New York Legislature to build a new
system, prescribing open primaries as a temporary fix. A panel of the U.S.
Court of Appeals for the Second Circuit unanimously affirmed the ruling in
August 2006.
Last month the U.S. Supreme Court picked the decision to
pieces during oral arguments, and reformers saw their hopes dashed. Most legal
commentators expect a reversal from the country’s highest court.
HOW FEINMAN PREVAILED
Given that reality, this year’s process is likely going to
be in place for a while.
“It’s very different than any other kind of campaign. In
Manhattan [conventions] are almost like rituals,” said Jerry Skurnik, a
Manhattan consultant with Prime New York who has worked on a number of Supreme
Court conventions in the city. “Part of what you do in your speeches and
mailings is you have to talk about how great the Manhattan system is.”
In Manhattan, eight different candidates mailed biographical
materials to delegates and aspired for the nomination at the judicial
convention. They were Acting Justices Paul G. Feinman, Laura E. Drager, Judith
J. Gische, Shirley Kornreich, and Lucy Adams Billings; Civil Court Judges
Manuel J. Mendez, Cynthia Kern, and Saliann Scarpulla.
Judge Feinman defended his politicking process frankly in a
telephone interview. The judge has been on the Supreme Court convention
shortlist for the last seven years, and has run two campaigns for Civil Court.
He recalled that petitioning process to get on the
Democratic primary ballot, using that system as a metaphor for his experience
with judicial delegates before the convention.
“People [on the street] would say, ‘I don’t know anything
about you’,” said the Acting Justice, recalling how he collected the reams of
signatures necessary to put himself on the Civil Court ballot in 1996 and 2006.
“You would say, ‘Well Assemblyman So-and-so is supporting me,’ and they would
say, ‘Well if she’s supporting you, then you must be okay.’ It’s happening on a
more microcosmic level in the convention system — it’s a smaller universe of
what goes on in the primary.”
In addition to the private gatherings, these delegates also
received an extraordinarily comprehensive biographical and jurisprudential
dossier. Judicial Reports obtained a copy of the thick packet that Acting
Supreme Court Justice Feinman photocopied and mailed to all the delegates.
Feinman’s package included a personalized letter from the
judge that listed the 28 political leaders who supported his candidacy, and
provided his personal telephone numbers and email addresses so the delegates
could contact him. Bundled with that letter was a two-page narrative summary of
the judge’s career and a four-page resume listing every honor, position, and
association he ever received, as well as a list of all his publications.
In contrast, the anemic Voter’s Guide found on the Unified
Court System website included a mere half-page summary of the judge’s career in
the court system, about as helpful as a high school yearbook entry.
“There isn’t a lot of information about judges out there.
It’s sort of endemic to the process,” said Acting Justice Gische, one of the
eight potential nominees at the convention this year. “But that can be changed.
Publications that are interested in getting the word out can publish the
information.”
According to Feinman, he submitted as much information as
the Office of Court Administration allowed and a pre-set character limit kept
the voter guide in its slim shape.
Feinman mailed almost 500 copies of his extensive resume
package to delegates, alternate delegates, elected leaders, district leaders,
and other political club leaders. He built his mailing list by searching the
names of the delegates off the Board of Elections website, and then searching their
names and addresses on the Internet. In addition, he made between 500 and 1,000
telephone calls to that same roster, pitching his credentials and struggling to
discern how many votes he could accrue on the convention floor.
Over the last seven years, Feinman has used a variety of
systems to map the elaborate delegate calculus: index cards, spreadsheets, and
this year, a pen and paper list. This was the only year when he entered the
convention virtually certain of having a majority of delegate votes.
Feinman placed high faith in the intelligence and research
put in by the individual delegates. “If you went to a primary system, I don’t
know that the average voter would be as informed as some of these delegates in
Manhattan,” he concluded.
His closest opponent in the convention race was Acting
Justice Billings, and she offered a cautious critique of the convention system
— all the time stressing her high opinion of the current Democratic leadership
and the delegates she met this year.
"I would like to see a system where the elected
officials do not support judicial candidates for the elected officials' own
ends," she said. "Where everyone bases their opinion on the voter’s
assessment of the candidates’ record and potential on the merits."
Thanks to the majority support of those delegates, Feinman’s
“election” bid will be unchallenged, as he is the only nominee running for the
sole Supreme Court vacancy this fall. The Republicans won’t bother to field a
candidate in the overwhelmingly liberal area, and three other incumbent
justices are running uncontested races for their own spots — making the
election a pure formality in Manhattan.
“SOME” COMPETITION
Even though political insiders thought that Feinman was the
party favorite, delegate Yang insisted that the lead-up to the convention bore
some traces of competition.
“There was suspense. Nobody knew if [Acting Supreme Court
Justice] Lucy Billings was going to back down,” recounted Yang, detailing the
only moment of conflict. “She was counting votes, calling me at the 11th hour.
. . . I think at the last minute she counted the votes and realized she didn’t
have enough, so she backed down.”
In a telephone interview, Acting Justice Billings described
her last minute decision, citing undecided delegates and party boss influence
as deciding factors.
"I had to make a calculation, my assessment was—and
those who were advising me—if [the delegates] don’t know how they are going to
vote, then they will ultimately follow the county leader. The county leader
disclosed he was going to support Feinman, which wasn’t a surprise," she
said.
A transcript from the landmark hearings in Lopez Torres
sheds light on the political wheeling and dealing that judges must participate
in besides wooing delegates. In that hearing, Justice Alice Schlesinger
described how she finally won the Democratic nomination after four unsuccessful
attempts at the convention.
She described a crucial meeting that occurred before the
1999 convention: “I met with [Herman D. Farrell ]either the day of the
convention or the day before the convention. . . . It was a pleasant meeting,
and he indicated that he thought that I had clearly more support than anybody
else and that he would not oppose my candidacy.”
Once the party leader lent his support, the judge’s bad luck
streak at the convention ended. She received the nomination and won her
election by the same kind of uncontested pageant that Judge Feinman will enjoy.
This year, when it became clear Feinman had the needed
delegate support, all seven contenders dutifully withdrew their names. They
delivered three-minute speeches, hoping to keep their names in the minds of
district leaders for the next staged convention.
“Do I think it’s a perfect process? No. Is it the best I can
think of? Probably,” said Feinman, defending the system as the only way public
defenders or Civil Court judges without campaign war chests can run for the
Supreme Court.
Thanks to the insulated delegate process, Supreme Court
candidates hardly need to fundraise. The Feinman for Supreme Court 2007
committee has raised, to date, nearly $9,000. By comparison, Judge Feinman’s
contested 1996 Civil Court race cost, by the jurist’s own estimate, more than
$100,000.
ONLY AS GOOD AS THE PEOPLE
Acting Justice Gische has been through every judicial
selection mechanism in New York City — appointed to Housing Court, elected to
Civil Court, and now, unsuccessfully running the convention gauntlet.
“If you put them all
on a t-bar, the system is only as good as the people who are committed to
making it work,” she said. “All of these systems can be corrupted, I can’t say
one is better than the other.”
“There’s something to be said for New York State having more
than one modality for a judge to get on the bench. This helps sort out the
pluses and the minuses of the three systems,” she concluded.
Despite the carefully choreographed parade of party
opinions, Yang insisted that she picked Feinman for his qualities, rather than
towing the company line.
“Paul Feinman in my opinion is one of the best judges out of
all the judges. I can’t speak for all the delegates, but I went through all
eight applications from potential candidates. I read their decisions. I can
sleep at night because I picked Paul,’ she concluded.
(As for hard data, neither Acting Supreme Court Justice
Billings nor Feinman have been on the Supreme Court long enough to amass enough
appeals to generate a meaningful reversal rate.)
In his landmark Lopez Torres decision, District Judge John Gleeson
ruled that the delegate scheme was rigged by party bosses, and declared the
whole system unconstitutional.
“[T]he selection of delegates and alternate delegates to the
judicial district nominating conventions is dominated by party leadership. The unique,
and uniquely burdensome, features of that process virtually guarantee that
result,” he wrote.
By that logic, Feinman’s lengthy biography, bar association
ratings, and delegate interaction mattered far less than the support he
received from the Democratic leaders. That voters can't be sure whether those
were the reasons the leaders chose him is precisely the reformers' point.
Posted by Dirk Olin on October 30, 2007 04:04 PM | Permalink
| Print
Comments
I've lived all over this country (Washington, Nevada, Utah,
Kansas, Missouri and now, NY) and seen all manner or selecting or electing
judges. As a practicing attorney, I can say that I have never seen a system
that did such a poor job of selecting its judges as our NYC system, which is a
sham.
When I first moved into the city, I asked a judge friend how
he got on the bench and he told me how he had to get in good with the party. I
asked which one and he said there is only one -- the Democratic party. I was
shocked and still am abhorred by the lack of input from any elected leaders in
the elected capacity.
A few thoughts on the process follow:
I find it ironic that the (as it turns out, ill-named)
Democratic party supports such an UN-democratic process.
The system is so bad that it is difficult not to question
the legitimacy of the courts and the judges altogether. The moral authority for
any judge to sit on the bench as a result of the current process is, at best,
flimsy.
The convention system has rotted and the judiciary is in
danger largely due to the type of corrupton that results from an unchallenged
one party system.
Posted by: TC | October 30, 2007 09:59 PM
It's interesting, but what does it all mean? The leaders are
voted to be leaders. Who wants a leaderless organization? On October 4th, the
Supreme Court grimaced in unison at the Brennan Center's outcome of primaries
for the well-funded/self-funded, which would give bought judgeships a new
meaning. That's progressive? Look at the diversity of the bench compared to any
Governor's appointments. How much money does Paul want to have to raise and
from whom?
Posted by: Jackie Najalack | October 31, 2007 08:13 AM
This is another excellent piece of reporting by Mr. Boog.
"Jackie Najalack" is promoting the party line of the New York County
Democratic Committee, and not very well. He claims in an earlier posting to be
a member of the bar, but the OCA has no record of him. Presumably it is a
pseudonym. Who are you really, Jackie?
Posted by: Kent Yalowitz | October 31, 2007 09:06 AM
These judges actually think they deserve a raise with the
kangaroo courts they run. They don't deserve a raise or even the title of
"your honor." They are a collection of political cronies with little
to no legal talent. Many of these judges haven't practiced any law in their
life besides clerking for a judge, i.e. judge Butler on the Queens ballot. It's
all about who you know and who you spread the appropriate amount of $ to. I
have little to no respect for most judges precisely for the way they are
elected and not to mention the way they conduct themselves.
Posted by: LT | November 8, 2007 10:20 PM
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