'Acting' Judges and the Problem of Judicial Independence
15 Pages Posted: 28 Aug 2009
Date Written: July 22, 2009
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.
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