BUFFALO, N.Y. -- Gubernatorial appointment of judges to New
York's highest court -- a process many legal scholars and officials
believe is better than popular election -- has choked off access
for most of the best candidates the state has to offer, according
to a legal scholar from the University at Buffalo Law School.
"Although New York's current method of selecting its Court of
Appeals judges was designed to be wide open and based entirely on
merit, the selection process, as it has actually evolved in
practice, is neither," says election-law expert James A. Gardner,
the UB Law School's Joseph W. Belluck and Laura L. Aswad Professor
of Civil Justice and vice dean for academic affairs.
The selection process for the State Court of Appeals, Gardner
says, is a perfect example of how gubernatorial appointment falls
short of its objective, which is to find the best candidates to
serve as the members of the state's highest and influential court,
and keep politics out of the process.
Instead, the selection process has "degenerated into a
fundamentally closed competition among a very small number of
sitting judges of the intermediate state appeals court," says
Gardner, who directs the law school's Jaeckle Center for Law and
Democracy. "It's not judicial appointment. It's judicial
The process is closed off, very narrow-minded and discouraging
to highly qualified outsiders, Gardner says. He emphasizes the
problem is with the process, not the candidates. State officials
and a nominating commission unfortunately have subverted a reform
designed to stop a previous proclivity that allowed patronage to
influence judicial appointment, according to Gardner.
"It's true that the best candidates for judges often are
overlooked or never make themselves available," Gardner says. "But
the fundamentally closed competition for judicial appointment is a
byproduct of the perversion of the process.
"Whereas Second Circuit appointees overwhelmingly have
significant prior accomplishments in legal practice and executive
branch service, the judges of the New York Court of Appeals are
distinguished mainly for having worked their way up through the
state judiciary," Gardner says. "Perhaps that is why the New York
Judicial Nominating Commission received only 17 applications for
Chief Judge of New York in 2008, when the position last became
Gardner points out that the alternative practice of selecting
judges by popular election is frequently criticized because of the
effect politics and fund-raising often play in who is nominated by
their parties and who ultimately wins the election.
Gardner makes several suggestions for reform. The Nominating
Commission should engage in more aggressive outreach to find better
candidates, he says. He suggests that the commission restrict the
number of names of sitting appellate judges it forwards to the
governor. Gardner also recommends the Senate "begins to take
seriously its constitutional role in the confirmation process and
insist upon populating the court with independent-minded
individuals from more varied backgrounds that better reflect the
depth of legal talent in the state."
Since its founding in 1887, the University at Buffalo Law
School -- the State University of New York system's only law school
-- has established an excellent reputation and is widely regarded
as a leader in legal education. Its cutting-edge curriculum
provides both a strong theoretical foundation and the practical
tools graduates need to succeed in a competitive marketplace,
wherever they choose to practice. A special emphasis on
interdisciplinary studies, public service and opportunities for
hands-on clinical education makes UB Law unique among the nation's
premier public law schools.