Why New York’s Judicial Elections Are a Lot Like the Subway

A New Yorker votes in Queens.

Photo: Selçuk Acar/Anadolu via Getty Images

As we head into Primary Day, thousands of New Yorkers in Brooklyn, Queens, and Manhattan will encounter the frustrating ritual of being asked to choose between judicial candidates they’ve never heard of. Chalk it up to our state’s odd process for electing judges, a system that is overly complicated and dominated by Democratic and Republican party officials, who jealously guard New York’s last bastion of political patronage.

A handful of Civil Court judicial contests are on the ballot, and there’s a high-profile fight underway for Queens Surrogate, the judge in charge of handling wills and estates in the city’s second-largest borough. The Daily News editorial board has a helpful guide explaining some of the issues and candidate positions.

But the real action, which happens almost entirely behind the scenes, is the election of many of New York’s 300-plus Supreme Court justices who, despite their lofty title, do not occupy the state’s highest court but instead are the workhorses who hande the vast majority of the state’s legal disputes as front-line trial judges whose terms last 14 years. As required by law, voters nominate Supreme Court justices by voting for delegates to a judicial convention, a sparsely-attended post-primary meeting at which would-be judges get the party’s nod to appear on the ballot in November. Finalists blessed by the convention often appear, unopposed, on multiple party lines.

“The judicial conventions themselves are an empty exercise. More than 96 percent of the nominations are uncontested,” the New York Times editorial board complained back in 2007. “They often take, from beginning to end, as little as 20 minutes.”

It’s likely you won’t see any names on your ballot for judicial delegate this week because the process is dominated by the elected officials and district leaders from each Assembly district, who designate friends, family, staff members, and other insiders as delegates. Few outsiders assemble the time, money, and effort to organize a group of insurgent delegates or attend the conventions.

Calls to reform or abolish the party-dominated convention system have been going for more than a century. The city’s bar association has been calling for changes since the 1870s. The system was challenged all the way to the U.S. Supreme Court, which ruled in a unanimous 2008 opinion that New York judicial elections, while clunky and frustrating, are legal. “Selection by convention has been a traditional means of choosing party nominees,” Queens-born Justice Antonin Scalia wrote. “While a State may determine it is not desirable and replace it, it is not unconstitutional.”

In my opinion, New York’s judicial elections are like our subway system: slow, maddeningly uncomfortable, and indefensible in many ways — but still surprisingly good at getting most of us where we need to go. Year by year, a little at a time, New York’s convoluted system has brought an impressive amount of ethnic, political and ideological diversity to the bench — considerably more women, Black, Latino, Asian and working-class jurists than we would get if the choices were left to legal insiders.

Years ago, I interviewed a young lawyer named Doris Ling-Cohan, the daughter of a Chinatown seamstress and a laundryman, who had spent years schmoozing the Manhattan Democratic organization, seeking a court position. Tammany Hall turned her down in 1997 and again in 2000 before allowing Ling-Cohan a ballot spot, after which she quietly made history as the first Asian-American woman elected to the state Supreme Court. She promptly began issuing important decisions like a 2005 ruling overturning New York laws banning gay marriage  (she was overruled by a higher court, but Ling-Cohan was proved right a decade later when the U.S. Supreme Court’s Obergefell decision struck down all state-level prohibitions on same-sex unions.)

Joseph Zayas, who currently serves in the powerful post of Chief Administrative Judge of the state, is another case in point. Raised in Harlem’s Frederick Douglass public housing projects, Zayas went to Fordham, Columbia Law, and spent stints as a court clerk and a legal aid attorney before starting the long slog through the judicial election process.

“I can say, from my own experience, that seeking a party’s nomination for a Supreme Court judgeship — as I did successfully in 2016 (and three times unsuccessfully before that) — can include the sort of meaningful community engagement that will both broaden the judge’s perspective and increase confidence in the courts, should he or she ultimately be elected,” Zayas wrote recently. Zayas described meeting with tons of district leaders — the people who run the judicial conventions — and found the politically necessary networking to be helpful. “These community leaders represented a broad range of personal and professional backgrounds; they were teachers, secretaries, small business owners, landlords, daycare workers, lawyers, and activists,” he wrote. “I listened carefully to everyone I met, and answered their questions about my background and experience.”

I recently met Adam Perlmutter, an appointed judge seeking election to the bench who has spent the last few months making the rounds of Brooklyn’s churches, block parties and Democratic club meetings. Perlmutter was the attorney who helped free Sharrif Wilson, a Brooklyn man who was falsely convicted at age 15 and spent nearly 22 years in prison for a grisly murder he didn’t commit. Sharrif made headlines when he died of respiratory distress syndrome less than a year after being released from prison.

Perlmutter, who has won several exonerations for clients over the years, is an expert on false confessions, police misconduct, and other abuses of the justice system. He has moderated panels for judges about how to spot and prevent wrongful convictions. “If you have somebody who is 15, 16, 17 years old, interrogated without a parent for a long period of time with nobody taping their interrogation, you know there’s a problem,” he told me. “The National Academy of Sciences did a study about the number of wrongful convictions nationally in the death penalty area, and put it at 4 percent. In New York, at 4 percent in a year, we would have over a thousand people wrongfully convicted. It’s not that we’ll completely eradicate the phenomenon, but we need to acknowledge the phenomenon.”

I would love to see more of this kind of concern about false convictions among state judges, who are often in the best position to halt injustice before it happens. But there’s little that I or anybody else can do to help Perlmutter’s judicial campaign. We can only hope that the men and women who run the Democratic Party in Brooklyn will figure out a way to continue our long, honorable, needlessly complex tradition of selecting and elevating grass-roots attorneys to the bench.

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