By Jason Boog
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.
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.
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
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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