Court of Appeals selection process was an undemocratic attack on our judiciary

The legitimacy of the judiciary depends on its members representing a cross-section of the community. The people of our great state, with all its diversity — the “gorgeous mosaic” as my former boss, David Dinkins, called it — deserve to see themselves reflected in their government officials, including judges. That is why it is so wonderful to have jurists like Chief Judge Rowan D. Wilson, the first African American chief judge in New York’s history; Presiding Justice Hector D. LaSalle; and Justice Joseph A. Zayas, incoming chief administrative judge and the first Latino to hold that position, leading the court system.

Moreover, we need judges willing to stand up for the rule of law, not mere political ideologues but individuals with integrity who know they are constrained by constitutional provisions, stare decisis, and legislative policy choices reflected in statutes. All of us, including our state legislators, must recognize that a key pillar of our democracy is a strong and independent judiciary that does not respond to individual political calls but to the law.

This is a lesson we all need to learn, and relearn. The latest frontal attack on the judiciary is a proposal to jettison New York’s constitutionally established merit selection process — Court of Appeals judges are evaluated by an independent, bipartisan commission, nominated by the governor, and confirmed by the State Senate — in favor of a system where a governor could appoint whomever he or she wanted, subject only to confirmation by the Senate. This proposal is a continuation of the escalating politicization of the judiciary — and the erosion of the public’s faith in our court system — that started at the federal level and continued with the State Senate majority’s flawed process involving Justice LaSalle’s nomination for chief judge.

I understand that it is easier to talk about threats to judicial independence when they come from people with whom we disagree ideologically, but it is clear to me that the threats are now coming from inside the house, so to speak.

I am a lifelong Democrat, and consider myself progressive. In general, my views on policy align with those senators who seek to place “liberal” judges on the Court of Appeals. But I cannot countenance their tactics.

CONSTITUTION IGNORED

Disregarding the constitution makes them as anti-democratic as their adversaries who disregarded norms such as giving the president’s nominee for the U.S. Supreme Court a fair hearing and an up-or-down vote. If it was wrong for Mitch McConnell to deny Merrick Garland a hearing when President Obama nominated him for the Supreme Court, it is wrong for our leaders now to disregard the constitutionally prescribed merit selection process enacted by the people in 1977. They are doing so in two ways: proposing to abandon the procedure while simultaneously twisting it to produce two nominees (one for chief judge and another for associate judge) from a single list vetted by the Commission on Judicial Nomination. This violated the state constitution which requires the Commission to prepare a new list for the governor each time a vacancy occurs on the Court. Notwithstanding how well-qualified those two nominees were, distorting the process is not something I can support.

Our current system of appointing Court of Appeals judges is the model other jurisdictions seek to follow. While not perfect, it works by depoliticizing the process and providing a layer of insulation from the normal operation of politics.

Yet astonishingly, the State Senate majority seeks to emulate the appointment process used for U.S. Supreme Court justices; look at how well that process has worked. Every poll reveals that confidence in the Supreme Court has sunk to an all-time low — and I regret to say, with good reason.

Perhaps, this is the natural consequence of party dominance over our nation’s politics. We should recall George Washington’s warning that political parties “are destructive of th[e] fundamental principle [of government by the people] . . . However [political parties] may now and then answer popular ends, they are likely, in the course of time . . . to become potent engines, by which cunning, ambitious, and unprincipled men [and women] will be enabled to subvert the power of the people, and to usurp for themselves the reins of government; destroying afterwards the very engines which have lifted them to unjust dominion.”

CURSE OF PARTY POWER

This, I fear, is the trajectory we are on today.

Washington anticipated that we might end up here, where political parties from both sides of the aisle draw election districts to favor themselves; where young Black lawmakers are expelled from the legislature in Tennessee (and reinstated days later); where a transgender representative is barred from the floor of the legislature in Montana; and where lawmakers of a governor’s own party prejudge her nominee for chief judge, stack the Judiciary Committee with senators already publicly opposed to the nominee without having even heard from him, refuse to bring the nominee to a floor vote in contravention of the constitution until a lawsuit is commenced, and then seek to overturn the constitutional process for selecting future nominees.

As much as I might agree with those legislators ideologically, I cannot follow them down this path of anti-democratic governance. The constitution seems to be merely an obstacle to their raw exercise of power, rather than a guide by which to rule and promote justice. To eliminate a merit-based evaluation of candidates for the Court of Appeals would mean that the governor can select someone simply to please the majority, regardless of merit.

I am astounded that Democratic lawmakers would seek to alter the constitutional process of merit selection, which was a liberal, democratic initiative to begin with. I can only imagine how loudly they would object if Republicans were in the majority and threatened to do the same thing.

The constitution is not a document we circumvent when it is inconvenient to our personal or political goals. It is easy to make this point when castigating folks with whom we disagree, but it is no less important to do so with those “on our own side.” Just because we might like the result, it is still wrong and unconstitutional. It is wrong when Republican presidents pick candidates from a list based on a litmus test to overturn a specific precedent. And it is wrong when progressive Democratic legislators and the governor similarly disregard the constitution.

To prevent the United States and New York from backsliding into tyranny, we must recognize that a key pillar of our democracy is a strong and independent judiciary that does not respond to individual political calls but to the law. If our lawmakers don’t recognize that, how can we expect as much from our fellow citizens.