Cynthia Nixon. Zephyr Teachout. Julia Salazar. These Democratic candidates, whose political fate will be decided on Thursday, are running state-level campaigns that have national visibility. Voters in New York’s primary election have had months to pore over interviews, watch debates, and attend town halls in races that will decide how far to the left New York Democrats will go in an effort to fight the Trump administration and make New York state a little more fair for everyone. But even voters who have been paying close attention to their local races are likely to have missed something crucial: judges.
As I tried to research four civil court judicial candidates on my ballot in Brooklyn this week, I learned it was remarkably hard to find any information about the people who will decide the legal outcomes and fates of thousands of New Yorkers. There were no campaign pages, few public statements and appearances, and almost no press. On ballots in East New York, voters had to pick seven people for something called “Delegate to Judicial Convention,” from a list of 14 names of people who do not have public campaigns or public visibility.
To understand why this important democratic process felt so damn impenetrable, I reached out to Susan Lerner, the executive director of nonpartisan election reform group Common Cause New York, who explained that the judicial election process is very messed up—and, according to Common Cause, unconstitutional.
JEZEBEL: The judicial process seems extremely complicated, and there’s virtually no information about the candidates. First, can you explain how the judicial election process works?
SUSAN LERNER: The state constitution lets the legislature decide how to choose judges. At various times, the state has chosen judges through a primary process. In the early 20th century, the legislature decided to change that process and instead of having primary elections to choose judicial candidates, it set up what’s called a convention process. And what that means is on your ballot, you vote for party activists who will be part of a nominating convention—a judicial convention—and those activists will choose who the party puts up for civil or Supreme Court judge. It’s a very political process. It allows the party leadership to hand pick who will be on the bench.
Common Cause joined in with a number of judges and other individuals who sued to have the way in which New York chooses its trial judges declared unconstitutional. The case was filed by a sitting Brooklyn civil court judge, Margarita Lopez Torres, who felt that she was denied a fair chance to put her name before the voters to run for New York Supreme Court, which is our trial court here in New York City. She’d been told that she had to “wait her turn” and she went through a couple of cycles and it still wasn’t her turn and she got angry and she filed a lawsuit. And we challenged the constitutionality of the way in which New York chooses its judges through party-specific judicial conventions. And we said that this denied candidates who weren’t hand picked by the party an opportunity to get on the ballot and put their names before their voters. The district court and the second circuit agreed with us that this was an unconstitutional way to select judges. The U.S. Supreme Court, in a decision by Justice Scalia [in 2008], decided that it might not be a good system, but it wasn’t an unconstitutional system.
Lopez Torres pushed back on this because she’s a sitting judge herself, and she wanted to move from the civil court to the Supreme Court, and she was told repeatedly: it’s not your turn. So those who are well-connected politically are then chosen to go up to the Supreme Court with a larger jurisdiction.
So nothing has changed since then about how New York selects judges?
That’s correct. And let me add one thing—the majority opinion by Scalia pointed out that New York state, three times in the past—in the 19th century and twice in the 20th century—changed the way of selecting Supreme Court judges. And that therefore, nothing stops the legislature from changing the system if it wanted to. And that therefore, basically people who want to change the system should go ahead and change the system through the legislature, and not through the courts.
Is that effort realistic?
In New York in its current political state? No. It never gets any political traction in Albany because the people who benefit from this plan are the political parties, and they’re in control.
And then the way to change any of that is through these confusing elections.
That’s correct. And that’s why the strong anti-incumbent push that we’re seeing right now is an interesting one, if it’s successful.
So if New York is able to flip some of those seats and reset the priorities of the legislature in this election, do you think elections will be reformed?
Well certainly in the election process in general, I think absolutely. And I think even if there isn’t a flip, there is going to be increasing pressure on the legislature to bring at least some aspects of our elections into the 21st century. I think the way in which we choose judges is obscure and complex. There isn’t an obvious replacement. The possibility of changing the election system through the legislature is going to take some time, even if there are a substantial number of reformers who are voted in.
It’s been remarkably hard to find any information on the judges.
One thing that we need across the country—we need a much better system of getting information about who’s running for judge. It’s worth doing some digging to try and figure out who these people are, and we at Common Cause are working on getting some funding for a project to figure out how to do questionnaires that judicial candidates can answer and put that information up on the web. At various times in other places, there have been ways to find out about judicial candidates.
For a short period of time, in the late 1990s, early 2000s, the city of Santa Monica in California had put up a website for judicial candidates. They had a standardized format, they allowed candidates for judge to put up a two-minute video where they could not talk about their opponents, and were only permitted to talk about their qualifications and their philosophy of judging. And then they would have information and an objective sense about the person’s background and it was incredibly illuminating because the candidates would quickly tell you well they were coming at judging from a community-based point of view or a law-and-order based point of view. And based upon your own personal preferences, you could then choose. So it would be possible to put out more information. It would be time consuming and expensive. And so far, here in New York, where we have almost no information provided about candidates, there’s very little provided.
Why does it work this way for judges only?
Every state tries to decide how to choose judges. One of the strengths and glories of the American judicial system is independence, which has been pretty rock-solid until relatively recently at the highest level and relatively the case at the trial level as well.
There’s no perfect way to choose judges. There’s a lot of discussion among lawyers, among the judiciary, among legal scholars and others who pay attention to this, to try and figure out what’s the best system. Is it better to appoint judges? Is it better to have a combination of appointment and elections? Is it better to have an open election for judges? The feeling in the early part of the 20th century was that that was too easy to sway, that elections could be bought, and particularly, the big problem is—and it’s not just New York—across the country the judicial elections, when it’s really hyper local, there is so little information. People don’t really know who these people and responsible voters, when they don’t know who to vote for, don’t vote. So you have a huge drop off with the judicial races. Very very few people are voting in them because they don’t know who to vote for, they don’t want to make a mistake, they just don’t vote.
People who run for judge, by the way, run under a different set of ethical rules. Particularly sitting judges, who are running in retention elections—they have very specific limitations on what they are permitted to talk about. So they can’t comment on pending cases. They can’t disagree with precedent. They can’t say how they would rule on a particular issue, because that would be pre-judging a case. And they’re not allowed to directly raise money.
There’s no perfect system. But what we can say is that the New York system is the worst. It really doesn’t give the voters much choice.
So for example, I live in Brooklyn and there are 4 judges on the ballot. How do they end up there?
So two of those judges were chosen through the party convention. They have the backing of the party. Two of them petitioned to get on the ballot. And we all need to do our own research into who are these people.
Now what I’ve heard from people who’ve gone through the process of trying to get a party endorsement is basically, the judicial candidates go from club to club to club to club. They figure out who are the people who are influential in the club. They have coffee, they have lunch, they basically schmooze them and try to convince them that they are good candidates.
So the voters have no say in any of that?
Voters get to choose the delegates to the judicial convention, but we don’t know any of these people. They’re just individual party activists. They’re not going to run a campaign. They don’t have money for mailing. They’re not doing robocalls. It’s a long list of people [on the ballot] of people’s names you’ve never heard of before, and you pick however many.
Another confusing thing about this is that in some districts, you’re voting for the judges, and in some you’re voting for the committee delegates—
And in some, you’re voting for both.
It’s very confusing!
The judges cycle at different times. When the term is finished, they need to either stand for election, or there’s an open seat. So in most districts, there’s likely to be some judicial races in every single election. But the judicial convention happens in September. It’s really confusing.
I think it’s really important that people understand how really messed up our system is, all the way down to these basic things that we just have taken for granted, and now people are starting to look at it and say, “Why?” and that’s the first step to getting it improved.
We talk so much about criminal justice reform and getting rid of cash bail, but electing who presides over these courtrooms is a huge part of that.
That’s exactly right. Black Lives Matter has done a good job of shaking up district attorney races. Community members, particularly communities that have been so horribly, negative impacted by faults in our criminal justice system, need to focus on local elections and understand that they can vote for DA and that they can vote for trial judges. We at Common Cause talk to people about the importance of voting, we point out that the decisions that are made in the criminal justice system are made in, major part, by people you can vote for or against. And that’s why I am hopeful that we’re going to get the necessary foundational support to do the substantial amount of work that it’s going to take to develop a questionnaire that the candidates can answer and then put together a website that we can provide information to voters, because this is the most common question that we get from people, and everybody is kerfuffled by it.
This interview has been edited and condensed for clarity.