Long Island's John Gleeson, a mere whippersnapper among federal judges (check out his high school graduation photo, taken last year), caused a stir when he declared New York's system of selecting trial court judges unconstitutional. His opinion certainly makes a good case that the system is outrageously undemocratic. Here's an overview of the old system from the Village Voice's Tom Robbins.
By coincidence I recently heard an entirely unfounded and preposterous second-hand rumor that, in New York, a seat as a trial judge (New Yorkers insist on calling their trial judges supreme court justices) can be purchased for $25,000. The Daily News reported last year that the price was actually twice that. An outrageously unsubstantiated and irresponsible rumor from a less populous state out west says that a mere $5,000 can get you appointed to a judicial vacancy in that far-off place, where there are undoubtedly no good Chinese restaurants. The point is, if you can afford to make it to the bench in New York, you can afford to make it anywhere.
But although Gleeson's opinion and the endlessly-unfolding Brooklyn judicial scandal make a good argument that New York's existing system is rotten, it's harder to suggest alternatives. In America there are only two ways to name judges: elections and patronage.
The first problem with elections is that judicial candidates have customarily adhered to the view that it would be unethical to tell voters what they'd actually do if possessed of the powers of the office they sought. Deceiving the public by concealing one's intentions is the only ethical thing for a judicial candidate to do. (See post 7.) Lawyers can't supply the missing information because judges will retaliate against them (or, rather, against their clients) if they do.
A second problem is that elections, in our modern media age, are financed by bribes. Last year the Eighth Circuit ruled that neither bar associations (traditional overseers of attorney ethics) nor the people of a state have any authority to prohibit state judges from shaking down litigants and lawyers.
So judicial elections are characterized by the institutionalized corruption necessary to influence voters' votes, coupled with a principled insistence that those votes remain as ignorant as possible.
The alternative to elections is the spoils system. Forty-five years ago Ari Hoogenboom wrote a great book called Outlawing the Spoils: A History of the Civil Service Reform Movement, 1865-1883. Somehow - probably thanks to the black-robe mystique - our system of selecting federal judges escaped the goo-goos' attention. We still pick our federal judges the way Andy Jackson picked the entire federal bureaucracy.
Sometimes it happens that a judge dies, resigns, retires or is removed in the middle of his or her term. There's really no practical alternative to political appointment in that situation, and it's pretty silly to imagine any system of political appointments could ever be anything but political.
A number of states have instituted what they call "merit selection." The phrase means that patronage is doled out by an unelected committee rather than an elected governor, and that brings us back to Brooklyn. A year before issuing his thunderbolt, Judge Gleeson presided over the prosecution of Edward Reich, at one time the head of a judicial screening committee. Reich went down for the kickbacks he extorted as a court-appointed referee. But it was pretty sweet while it lasted: he named the judges to the bench, and the judges named him referee, and he took his cut of the money crossing his desk. That's merit selection in action.
The wonder isn't that both systems sometimes produce clunkers. It's that sometimes they don't.