In Search of the “Oaks of Justice” – in smoke filled back rooms.

Brendan J. Lyons wrote a telling report in the Sunday August 12, 2012 edition of the Times Union, “Politics swirl in bid for judges”.

The story describes how sitting New York State Supreme Court Justices have paid large fees to an Albany, New York consulting firm to broker cross-endorsements for their re-election in the fall.

Two such Justices of the Supreme Court in the Appellate Division, Third Judicial Department, cited in the report, Bernard J. Malone, Jr. of Albany and E. Michael Kavanagh of Ulster County, have collectively paid $40,000 to William D. Powers, former State Republican Chairman under former Governor Pataki, to arrange to eliminate the prospect of any opposition in their bids for re-election.

Justice Kavanagh was quoted in the article as saying that “the elected process does not serve the public very well” and that while he “strongly supports the people’s right to choose, but the election of judges and the restrictions that are imposed on us in terms of campaigning make it very difficult for voters to become informed.”

The Times Union report goes on to say;

“…over the years, the manner in which cross-endorsements unfold at the judicial convention – roughly 82 handpicked delegates often vote in line with their party leaders – make legal ethicists shudder”.

And quoting James Sample, a law professor at Hofstra University who is considered an expert on voting rights and judicial elections,

” … It’s Soviet-style democracy in the sense that we have all the appearances of an election:  You go to the ballot box, except the choices have all been made for you”.

Jurists who believe that voters are perhaps not well enough informed about judges and justice to be trusted to vote in a judicial election and that the task is best accomplished by political compromise have identified the right issue, but come up with the wrong answer.

People need to become more informed about how our justice system works and more directly involved in assuring that only the best of the state bar be entitled to assume judicial office.  Whether this means the election of our state’s judges and justices at the ballot box as part of an open and informed electoral process or through a constitutionally revamped merit based judicial selection process, is something to be studied and decided – by the people in a referendum.

One thing is for sure though; the selection of the men and women who are to serve justice in our names, should not be made by party bosses based upon scripts written by power brokers.

“Democracy is a very bad form of government.  Unfortunately, all the others are so much worse”

Winston Churchill


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