In today’s decision in New York State Board of Elections v. Lopez Torres, available here, the United States Supreme Court reversed a Second Circuit decision that had invalidated the way New York selected judicial candidates for its trial court (known, in New York, as the “Supreme Court” because of its general jurisdiction).
The plaintiff was a judicial candidate who complained that she could not win the party’s nomination because of how New York structured its judicial-candidate selections — with party primaries a sort of indirect democracy, in which voters chose delegates who then chose a party nominee. The system also had a feature something like “super-delegates,” in which some delegates were picked by party bosses rather than primary voters. The plaintiff contended that this system deprived her of a fair shot to win the nomination over the wishes of the party bosses, who she contended were angry (among other reasons) because of her refusal to make patronage hires. The Supreme Court held, in essence, that there is no such constitutional right.
Although the majority opinion did not emphasize the fact that this happened to be a judicial election, two concurring opinions were written to do just that.
Justice Stevens, joined by Justice Souter, merely made clear the limits of the majority’s endorsement of New York’s unusual process:
Our holding … should not be misread as endorsement of the electoral system under review, or disagreement with the findings of the District Court that describe glaring deficiencies in that system and even lend support to the broader proposition that the very practice of electing judges is unwise. But as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: â€œThe Constitution does not prohibit legislatures from enacting stupid laws.â€
Justice Kennedy, joined in this portion of his concurrence by Justice Breyer, perhaps unsurprisingly had much more detailed advice. The part worth highlighting here is the expressed hope that, so long as we have judicial elections, they can be used to further understanding and debate about the judicial system itself:
Still, though the Framers did not provide for elections of federal judges, most States have made the opposite choice, at least to some extent. In light of this longstanding practice and tradition in the States, the appropriate practical response is not to reject judicial elections outright but to find ways to use elections to select judges with the highest qualifications. A judicial election system presents the opportunity, indeed the civic obligation, for voters and the community as a whole to become engaged in the legal process. Judicial elections, if fair and open, could be an essential forum for society to discuss and define the attributes of judicial excellence and to find ways to discern those qualities in the candidates. The organized bar, the legal academy, public advocacy groups, a principled press, and all the other components of functioning democracy must engage in this process.
To the extent a newly formed blog might be a very small part of “a principled press,” that paragraph expresses my perhaps idealistic hope for the blog’s election coverage. Don’t expect politics here. Do expect coverage of campaign positions relevant to practitioners, some discussion of the role of elections, and some other resources that might be helpful to you in deciding how to make up your own mind.