Modernizes the commission on judicial nomination

Section 2 makes technical amendments to Judiciary Law section 61(2).

Section 3 amends Judiciary Law section 62 in relation to members of the Commission. After the effective date, members could serve only two full terms, and vacancies would be created at the end of terms (ending so-called "holdover" appointments). To discourage Commission vacancies, the Commission would be required to inform appointing officers 30 days before their appointees' terms expire (or immediately for unexpected vacancies), and the number of persons required to reach quorum (now 10) would be reduced by the number of vacancies not greater than two (so a vacancy would not constitute a "no" vote). In making appointments, appointing officers would be directed to consider the need for racial, gender, ethnic, geographic and experiential diversity.

Section 4 amends Judiciary Law section 63 to invite the Commission, in selecting among well qualified candidates, to weigh appropriate institutional factors such as racial, gender, ethnic, geographic and experiential diversity. These factors would not enlarge or replace constitutional definitions of a well-qualified candidate (e.g. temperament, education, experience). To allow the governor to consider a broader cross-section of nominees, consistent with the Commission's role as a nominating panel, the Commission would be invited to recommend nine candidates for chief judge (instead of seven) and up to nine candidates for associate judge (instead of between three and seven).

Section 5 amends Judiciary Law section 64 to require the Commission to maintain a public website with expanded disclosure relating to the Commission, the Court of Appeals, the selection process, instructions for persons and groups wishing to recommend candidates, forms, vacancy notices, and the expanded disclosures for candidates recommended to the governor.

Section 6 repeals Judiciary Law section 65(4), which imposes an anachronistic restraint on the Commission's power to consider previously proposed candidates.

Section 7 adds a new Judiciary Law section 65-a to establish a new selection process that would, in large measure, supplant the current rules of the Commission, as follows:

Interviews

After the Commission completes review of all prospective candidates' credentials (including disclosure forms), the Commission would interview every candidate who receives the support of at least four commissioners.

Discussions

After interviews, the Commission would discuss each interviewee's qualifications. Persons maintaining the support of at least four commissioners would reach the Commission ballot.

Voting process

A statutory voting process would replace the current rules, whose complicated weighted-voting system allows a handful of commissioners to exclude potentially meritorious candidates. The new voting process, modeled on national best practices,(1) would provide for rounds of voting based on merit, in which all votes are weighted equally. This process would preserve the eight-person super majority for selection, subject to special rules in case of Commission vacancy, and would exclude candidates who gamer minimal or no support.

Section 8 amends Judiciary Law section 68 to complete the selection process slightly sooner than current law requires, allowing time for public comment on the Commission's recommendations.

Section 9 adds a new Judiciary Law section 69 to establish a process for broad public outreach, including mandatory vacancy notices to bar associations and other organizations, a uniform process for such organizations to propose candidates to the Commission, and a uniform process for timely public comment on the Commission's recommendations to the governor. These processes would be based on existing judicial screening systems in this state (e.g. the screening panels for gubernatorial and mayoral appointments, voluntary party procedures for nominating elective candidates under Part 150 of the Rules of the Chief Administrator of the Courts, etc.), and could take into consideration best practices across the country.

Section 10 amends Judiciary Law section 212 to direct the Office of Court Administration, at the Commission's request, to assist the Commission in maintaining its website and an accurate list of bar associations and organizations slated to receive notices from the Commission under this act.

Section 11 provides for an effective date 60 days after the bill shall have become a law, and requires the Commission immediately to amend its rules and begin canvassing bar associations and other organizations for inclusion in the public participation system.

Justification

While the Commission's 30-year history includes outstanding jurists recommended for selection by the governor and ultimately nominated to the Court of Appeals, the Commission suffers from a perception, if not the reality, that the selection process is not broadly inclusive or structured to encourage a broad class of qualified jurists to apply. While the most recent Court of Appeals vacancy perhaps is the most illustrative of this dynamic - only a dozen persons applied in 2008 to follow Judith Kaye as Chief Judge of New York, a global capital of law and commerce - for years there has been a long and disturbing trend of decreasing numbers of applications to the Commission. This trend, in turn, raises difficult questions about recruitment of candidates for the Court of Appeals, and thus about the Commission's effectiveness in handing up the very best qualified jurists for service on one of the world's pre-eminent common law courts.

Senate hearings on this subject in 2009 revealed numerous potential reasons for this dynamic, mainly the Commission's failure to take all reasonably practicable steps to encourage qualified persons to become candidates. Beyond far more vigorous public outreach than has been the Commission's practice, it is necessary to foster a more conducive environment in which bar associations, civic groups and the public meaningfully can propose prospective candidates for nomination. Also necessary are broad transparency and disclosure measures to overcome the Commission's opacity, which itself contributes to a lack of public understanding of and trust in the merit selection process. These objectives, in turn, require substantial improvement of the Commission's process of soliciting participation from all sectors of New York's legal, civic and other public spheres, and integrating these contributions into the selection process.

Also important are institutional considerations of diversity - racial, gender, ethnic, geographic and experiential- both for members of the Commission and for selection among well-qualified candidates on the basis of temperament, education and experience. To the extent practicable, the leaders of New York's three branches of government, when making their appointments to the Commission, should take into account the Commission's need to be broadly representative of the diversity of the Empire State. Likewise, while not supplanting or enlarging the merit-based constitutional factors for selection to the Court of Appeals, it is appropriate that selections to the state's highest court reflect the diversity of experience and identity that bests promote a Judiciary open to new ideas and wisely able to balance decisional precedent with the unprecedented challenges of modernity.

Perhaps most important to ensure the reality and perception of fairness is to reform the Commission's opaque and manipulable voting process. Rather than operate on a system of one-person/one-vote, current Commission rules require commissioners to rank candidates and sort them on the basis of total "points." SEE 22 N.Y.C.R.R. §7100.7(3)-(4). This point system has the perverse effect of allowing a small number of commissioners to block the will of even a super majority and exclude candidates who might obtain the vote of eight commissioners in a fair, equally-weighted vote. This result is not only undemocratic but also palpably unfair, and substantially contributes to a perception that the Commission is not equally receptive to all potentially well-qualified candidates. Only by redressing this appearance can the public be sure that the Commission attracts and properly considers a broad cross-section of qualified candidates for the highest and most influential judicial offices in this state.

Such are the purposes of this bill: to modernize the Commission, enhance recruitment by the Commission, provide the public with vital information about the process and the candidates, give the public meaningful opportunities to participate in the selection process and conform the Commission's voting process to best practices nationwide. The bill would promote these goals without resort to inappropriate quotas or preferences, without retreating from the high standards of excellence that must guide selection to the Court of Appeals, and without compromising the principles of merit selection that the voters of this state constitutionalized in 1977.

Through these reforms, the Commission on Judicial Nomination can be restored to the high public trust that our Constitution requires, as an example to the nation of an effective, transparent, accountable and forward-thinking merit-selection system for a state high court.

Fiscal impact

None.

Effective date

This measure would take effect on the sixtieth day after the bill shall have become a law; provided that the Commission on Judicial Nomination immediately would be authorized and directed to amend its rules to conform to the provisions of this act. LEGISLATIVE HISTORY : None. New measure. FOOTNOTE : (1) See e.g. Caufield, "How the Pickers Pick: Finding a Set of Best Practices for Judicial Nominating Commissions," 34 Fordham Urb. L. J. 163 (2007); American Judicature Society, "Handbook for Judicial Nomination Commissioners," at 153-166. Under this plan, the support of any four commissioners (i.e. just one-third of the members) could bring a candidate up for an interview and a place on the Commission's ballot. After assembling the final list of candidates, the Commission would discuss the candidates and place their names in alphabetical order on a ballot. Each commissioner then would vote for a number of candidates equal to the number of authorized choices (~nine for chief judge). Candidates receiving at least eight votes (out of 12) would be recommended to the governor; if too few candidates are selected in the first round, further rounds of voting would proceed, with commissioners choosing a number of remaining candidates equal to the number of remaining slots to fill. Provision would be made for rounds in which too many candidates are selected (re-vote but exclude candidates failing to receive at least eight votes) or no candidates are selected (re-vote but exclude the candidate who received the fewest votes).