'Acting' Judges and the Problem of Judicial Independence

15 Pages Posted: 28 Aug 2009  

Oscar G. Chase

New York University School of Law

George W. Mustes

affiliation not provided to SSRN

Date Written: July 22, 2009

Abstract

Contemporary threats to the independence of American judges have drawn critical comment from a variety of observers. In this spirit we describe and critique New York’s under-examined practice of using “Acting” Supreme Court Justices. These are judges serving on courts of inferior jurisdiction who are temporarily appointed to the Supreme Court of the State of New York, the state’s trial court of general jurisdiction. As the “Acting” title denotes, these appointees do not enjoy significant job security in their Supreme Court judgeships. While we focus here on the “Acting” judiciary of New York that state is not alone in using temporary judges and much of what we offer is relevant to other jurisdictions. We argue that both the possibility of an “Acting” appointment and the lack of any security in the position if appointed to it, create incentives to please appointing authorities that restrict independent decision making. We recommend that New York abandon the practice of “Acting” judicial appointments. Failing that we recommend making the process fairer and more transparent.

Suggested Citation

Chase, Oscar G. and Mustes, George W., 'Acting' Judges and the Problem of Judicial Independence (July 22, 2009). NYU School of Law, Public Law Research Paper No. 09-45. Available at SSRN: https://ssrn.com/abstract=1463563 or http://dx.doi.org/10.2139/ssrn.1463563

Oscar G. Chase (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6217 (Phone)
212-995-4881 (Fax)

George W. Mustes

affiliation not provided to SSRN ( email )

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