To Elect or Not to Elect: A Case Study of Judicial Selection in New York City, 1977-2002

Abstract

The issue of judicial selection, long of academic interest, is receiving unprecedented national attention. This Article examines the process of judicial selection in New York State in light of the recent court decisions in Republican Party of Minnesota v. White and Spargo v. New York State Commission on Judicial Conduct, which paved the way for increased campaign speech in judicial elections. Relying on empirical data to compare judicial elections and appointments in New York City between 1977 and 2002, this Article finds that elections produce a judiciary that is more beholden to interest groups than one generated through appointments. The consequence of greater special interest involvement is an erosion of public trust and confidence in the judiciary. Moreover, while elections arguably have increased diversity in the New York City judiciary, elections have not achieved the same result at the statewide level. The Article concludes that New York State should abandon judicial elections and implement a merit selection system with a diverse, non- or bipartisan nominating commission at its core.

This Article examines and compares the election and merit appointment selection methods. Part I details the extant methods, with a particular focus on New York State. Part II relies on empirical data to compare the judges produced by election as opposed to merit selection in New York City for the period 1977 through 2002. Specifically, the Article attempts to ascertain which judges were more likely to be disciplined for judicial misconduct and which selection method yielded a more diverse judiciary. Statewide data for the elected judiciary is examined to complement the diversity analysis. Part II also examines the degree of citizen participation in judicial elections by analyzing the numbers and percentages of citizens who voted for judicial candidates in New York City. Finally, Part III outlines a model system of merit selection.

Keywords: Judicial selection, Merit Selection, Judicial Elections, Diverse Judiciary, Judicial Misconduct