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THE JUDICIAL SYSTEM THIRD BRANCH OF GOVERNMENT NEW DIRECTIONS AHEAD? Prepared by Malverne High School students, Marlon Johnson and Lionel Matthews (teacher: Ms. Sheryil Straker) and Westbury High School Student, Marcus Malloy (teacher: Mr. Aaron L. Howell) This Issue-in-Brief is part of 2010 Renew New York, sponsored jointly by Hofstra University, Newsday, and Cablevision. See Renew New York website at http://renew-newyork.com. Students from 10 high schools used the model of the National Issues Forums in preparing briefs and forums. Hofstra coordinators: Michael D’Innocenzo, Andrea S. Libresco and Bernard Stein (in association with the Hofstra University Center for Civic Engagement, interns: Kayla Rivara and Samantha Rashid) Introduction If you ask most voters what they see on a ballot in an election that does not involve the presidency, they will tell you they see a long row of names of candidates for judgeship positions. They will also tell you that they have never heard of practically any of them. How can we elect judges intelligently when voters know almost nothing about them?

Two Supreme Court Justices have been confirmed during the past year; there was much discussion that they would serve for “life.” Should that national approach garner more attention for the term duration in New York State? Today, the Supreme Court is the head of a federal court system. Underneath it are 11 Courts of Appeals that were first created in 1891 to ease the burden on the Supreme Court. The Courts of Appeals review the decisions of the district courts within 1


their area of jurisdiction. . Beneath the Court of Appeals are 91 district courts (89 districts in the 50 states, and one each for the District of Columbia and Puerto Rico). Beneath these are the courts of special jurisdiction, such as Patents and Customs. Congress has the power to create and abolish federal courts (except the Supreme Court, which cannot be abolished), and also determines the number of judges in the federal court system.

Judicial Elections in New York State: a Brief History Like many of the original colonies, New York State began with an appointive process for judicial selection. That system continued in various forms until the Constitution of 1846. Since that time, most of the judges in the New York State court system (now known as the New York State Unified Court System) have been selected through some form of popular election. Having established an elected judiciary, the people of New York have been reluctant to change back to an appointive system, with one important exception. In 1977, voters approved a constitutional amendment that provided for the appointment of Court of Appeals judges.

New York State Court Structure

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This Issue Brief asks you to examine the pros and cons of the following decisions that New Yorkers can consider regarding its State judiciary. 1) Should judges be elected? 2) Should judges be appointed? 3) Should judges in New York have lifetime appointments, as is the case for all Federal Judges? 4) How should judicial compensation be determined; and how does it affect “separation of powers” in a democracy?

Some Options to Consider Option 1: Appoint Judges For the Court of Appeals, The New York‘s Highest Court, judges are chosen through the “merit system.” Candidates send their applications to the Commission on Judicial Nomination (a bipartisan body of 12 members - four of the members are appointed by the Governor, four are appointed by the Chief Judge, one each by the Senate Majority Leader and Assembly Speaker, and one each by the Minority Senate and Assembly Leader). Two of the people appointed by the Chief Judge have to be non-lawyers. The commission evaluates the candidates and determines who deserves to be appointed by how qualified they are and presents a list of seven candidates to the Governor; he may only choose from that list. The Governor’s nominee is then sent to New York State Senate for confirmation.

Those Who Support Appointing Judges Say: 

Fundraising for a campaign can be very costly and can cause judges to feel, or to become, obligated to do something for the contributors of their campaigns. This can cause conflicts and corruption.

Judges become politicians when they run for office with campaigns to gain people’s votes. Judges shouldn’t be involved in politics.

It is almost impossible for voters to learn enough about judges to make informed decisions. A candidate for Supreme Court judgeship runs in both Nassau and Suffolk Counties, a population of nearly 3 million. Who knows much about these candidates?

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The Judicial Nominating Boards of government officials are more experienced; they can better evaluate the qualifications of a potential judge than the average voter. Therefore, they can choose better judges.

The Judicial Nominating Boards make appointments based on merit and the high qualifications of a candidate. In the 2010 primary for Attorney General, all 5 of the candidates favored expansion of judicial appointments.

Those Who Oppose Appointing Judges Say: 

When Judges are appointed it gives the Judicial Nominating Boards a huge amount of power. The Judicial Board members are not accountable to the public.

Judges should be responsible for their decisions. The best method for citizens to determine this is to have a chance to vote for a judge who wants to run for another term, and to have a choice of opponents. Let the voters decide.

When Judges are appointed, government officials will take over the selection process; their friends appointed to the bench are likely to give them favorable rulings.

The nomination process for appointive judges is likely to be secretive and not clear to the voting public regarding how and why selections were made.

Trade offs: Appointment of judges is more acceptable if they have specific years of service (fairly brief ones), if there are limits to how many terms a judge can serve, and if there is a regular review process for reappointment.

Appointment of judges is more acceptable if there is a transparent process of selection, by a qualified, non-partisan committee in conjunction with elected officials, information about candidates and process is available for citizens through the media, government records, and, especially, on line. Amy Bach, author who subtitles one of her books, “How America Holds Court,” advocates establishing a “Justice Index” in which county and state courts would have rankings like those given to colleges and hospitals, and the process of doing them would be transparent and clear to voters (including web site postings). 4


Option 2: Direct Election of Judges There is no one way set in stone for state judges to come into power. While Supreme Court justices are appointed without elections, many states within the union elect their high court judges. In Texas all judges from the court of appeals to the Supreme Court are elected. The Texas Supreme Court is elected to 10-year terms while the county court justices only serve 4 years. However in New York State, Supreme Court justices are elected to 14-year terms while all other state justices are elected to different term lengths depending on their position. Should the length of elected terms depend on the nature of the judicial position held in New York’s complex court system?

The system of direct election can give citizens a true feeling of democracy. Instead of feeling out of the loop with our government, all elections provide the potential to change the system for the better. With voting we are sure we are getting the judge we want. When a judge is appointed, many times s/he only comes into power because of whom s/he knows and not what s/he knows. Since judges will have to run frequently for reelection, we cut back on the chance of corruption that usually comes with too much time in power. Judges that are appointed to long terms tend to become more corrupt because they no longer have to worry about the “people’s opinion” - and therefore do not have to worry about being voted out of office.

The election process requires not only worthy candidates, but also an active and informed citizenry, which is something we lack. Many Americans are too busy to research a potential judge and can only make judgments based on what they see through television ads, or hear through word of mouth. The election process also requires candidates to raise funds for their campaign, which may come from questionable sources. Although voting is very democratic in spirit, always giving the people what they want may not always be the right thing to do.

The world is consistently changing around us, and it is good that our government can change with it in order to remain effective and democratic. This is what the forefathers had in mind when they created the Constitution. If the people do not have the power to change what is wrong 5


in their government, they are doomed to be controlled. Voting for judges in and out of judges promotes change, and when change is needed it must come.

Those Who Support Electing Judges Say: 

Elected judges are more in tune with public opinion: Elections can impel judges to understand and respect public opinion so they can advance a form of law that is seen as "just" to all citizens, not just to their own conscience.

Citizens gain a true feeling of democracy: When the constitution was constructed it was created in a way so that the Government could never seize full power of the people again. Citizens would no longer have to sit by and accept the fate their government deemed acceptable.

Elections force judges to work harder and to be mindful of accountability to the voting public: Because there will be competition for job openings, judges will have to prove themselves worthy of being elected.

Those Who Oppose Electing Judges Say: 

We risk the chance of partisan voting: The general public lacks reliable knowledge on the candidates and decisions will ultimately be based on which party the judge is representing.

Elected judges are more susceptible to corruption by campaign funders: The process of running a successful time involves lots of time and lots of money. Most candidates have the time but not all have the money forcing them to rely heavily on funds raised from the campaign. [Examples here or earlier –or both places – re the costs of campaigns of judges – some sense of where the funds come from] In turn we risk that possibility that if a judge is elected he/she will feel obligated to look that other way, or rule in favor of those who helped get them in office.

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Judges cannot voice their own opinion, so how can voters decide: According to New York campaign code of ethics for judicial elections, judges are supposed to remain silent on their politics, so that, once they are on the bench; they can neutrally and objectively examine individual cases on their own merits. So if this is true what are citizens really voting on? How nice a smile a judge has?

Trade-offs: Electing judges can better serve the public interest if they are given longer terms of office, so that they are more likely to think of the long-term good of the State and its citizens, rather than of the short-term interests of those who help finance their campaigns.

Electing judges can give citizens effective selection power if judicial campaigns are publicly financed and the records of candidates are widely available with effective media coverage of campaigns.

Option 3: Life Terms for Judges Justice is a powerful word that means so much to so many people. It is valued dearly and is fought for and maintained as best as humanly possible. With such an important aspect of life in question, should time be a limitation to those who strive to maintain the same justice we all want? It has been argued that imperfection within the judicial branch within the local court systems can be tied to the length of the term a judge serves. When judges are elected or appointed for only a set number of years are believed to be more likely to be swayed in their decisions in return for support. For this reason, it is believed that giving Judges a long -term appointment would insulate them from popular opinion and remove the fear of losing their job or status. The highest court in the land, The Supreme Court has 9 Justices that are appointed for life. They are never up for "re-election" and therefore do not have to concern themselves with serving the majority. This is one of the ways that the Constitution protects the rights of minorities. If Supreme Court justices had term limits, it might bias their rulings based on reelection, so why should we give term limits to state courts? The highest court in New York State, The Court of Appeals has 14-year terms for the serving Judges who are put in power by appointment. Local court systems in New York have even shorter terms. If they could be easily thrown out of 7 Â


government, Judges could have their decisions swayed a certain way and no longer be impartial and independent. Government is based on a system of checks and balances, because the other two branches of government are up for reelection, and the judicial branch isn't, the judicial branch wouldn't have to worry about reflecting public opinion. It then balances out the other two branches of government (executive and legislative) who may have more immediate goals during their short terms. New York Courts are not as disconnected with the other two branches of government as the Supreme Court and, as a result, they are more tied to aspects of politics that can force deviation from the justice which is sought after.

Judges, like all people can be swayed in one direction or another, notwithstanding that they are supposed to be able to make decisions without fear of reprisal. Needing to face elections can sway their impartial rendering of justice. However, those who oppose life tenure, want to be able to review/remove a judge who is seen as unfit or corrupt (elections and reappointments can serve this purpose). This strengthens democracy and can create a more stable and satisfied feeling of the people towards the court system. With a stable rotation in power from chosen judge to the next, the will of the people is more likely to be met by their choice of whom they want in office. And, in respect, for the will of the people, a judge will be likely to make decisions that reflect the majority that got that same judge into office. Judicial life tenure advocates share some of the Founders early concerns about how prepared most citizens are for major decision-making. People may usually mean well, but tend to act out their own sense of justice, and that may not be fair or may not be justice at all. A life term for New York State court Justices may change the decision making within the state and would better balance political power.

Those Who Support Life Terms for Judges Say: 

Judges can be left to do their business with no threat of losing their jobs.

The possible causes of corruption become limited.

This limits the power of the other two branches of government with checks and balances with the courts not being swayed by politics.

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Removing mandatory retirement age also gives experienced judges the opportunity to apply the wisdom of their years on the bench for the good of society.

Those Who Oppose Life Terms for Judges Say: 

Judges serving for a long time can become dull over time and lose the ability to analyze all aspects of a case and the law.

Judges may make wrong decisions knowing that their job isn’t at stake.

Life appointments would not guarantee that a judge won’t be biased, although this admittedly lowers the chances of that happening.

The 19th century writer, Alexis deTocqueville, said that appointed, life-tenure judges constitute an “Aristocracy of the Robe,” – a fundamental disparity with principles of democracy.

Trade-offs: While there is a risk that lifetime judges may grow out of touch with changing public opinion over time, this is a risk worth taking to insure their independence in making decisions.

Lifetime judges can be trusted to serve the public well if the process for electing or appointing them is clear and responsible to the public. Consequently, those who gain office will have come into those positions with more appreciation from the citizenry.

Option 4: Judicial Compensation The topic of judicial compensation has become a major issue in New York State. Compensation is essential to effective employment in any field.

The compensation provided should be

adequate compared to skill and experience required to execute the job in a manner that is sufficient. Low judicial pay poses a serious problem to attracting and retaining highly qualified judges in New York State. Judges in New York have been under paid in comparison with judges in other states and with those in the federal government, especially when pay is adjusted for the cost of living and inflation. 9


Federal Judiciary Salaries In 2010 Supreme Court Justices

$213, 900

Circuit Court Judges

$184, 500

District Court Judges

$174, 000

Bankruptcy & Magistrate Judges

$160, 080

Current NYS Judicial Salaries (established in 1999) Supreme Court

$136,700

Court of Claims

$136,700

County, Family & Surrogate’s Court

$119,800 - $136,700

District Court

$122,700

New York judges are also underpaid in contrast to professionals in other fields throughout the state (e.g. General Counsel for the City University of New York earns $220,000; a New York City District Attorney can earn $190,000, while trial judges earn approximately $136,700). Newly hired New York private-sector attorneys (law school grads at 24 years old) also can earn more than New York State judges (often with starting salaries of

$160,000, with promises of

annual bonus of $40,000).

Traditionally judicial compensation has been linked to the salaries of legislators. However, executive and legislative branch members have a budgetary authority over the judicial branch. This point alone might have a great impact on judicial independence.

How can judges be

independent and impartial if they have to rely on the other branches for compensation and salary increases? Ethics reform would help to solve this problem. The federal government created the Ethics Reform Act of 1989, which helped to establish a pay system for judges determined by an independent commission of citizens.

This group would decide the sufficiency of judicial

salaries. The Ethics Reform Act also tied judicial compensation to an automatic cost-of-living 10 Â


adjustment (COLA). The COLA is based on the rate of inflation or the increase in the cost of goods and services. The Ethics Reform Act only applies to the federal court system; NYS has no commission or system to for judicial compensation. In NYS judicial salaries are still tied to legislative salaries.

The failure to act on the issue of judicial compensation has caused the judges of New York to file a lawsuit against the State of New York.

This poses problems: 

Unnecessary expense on the part of tax-payers due to the inaction of the legislative and judicial branches on the issue of salary increases for the members of the judiciary

A question of judicial independence – New York State judges must hear the case that will determine whether or not they receive a salary increase

Those Who Support Increased Compensation for Judges Say: 

This can attract highly qualified judges to the bench

This will increase the retention rate of judges prior to mandatory retirement

Separating judicial salaries from the political process decreases the likelihood of judiciary misconduct (establishment of a judiciary commission)

Those Who Oppose Increased Compensation for Judges Say: 

Lack of revenue to pay for the salary increases

No judicial independence if compensation is determined by the other branches of government (i.e. the link between legislative and judicial salaries)

Principled individuals are willing, even eager, to render public service as judges, recognizing that they will be earning far less money than they could get in the private sector.

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Trade-offs: While an increase in judges’ salaries would cause an increase in taxes or a decrease in the availability of funds for other services throughout the state, this is an important action and worthwhile financial sacrifice by citizens for the health and vigor of our democracy. Judges are not likely to be effective or independent if they are not fairly compensated. If budgetary adjustments need to be made, they should be found from other expenditures or in terms of adjusting the tax code, both state and national.

Tough Issues to Consider Appointed or Elected. Term of Office. Compensation. All of these issues are important to the proper functioning of the third branch of government, The Judiciary. They all have an impact on how we view our judges and, ultimately, how much we care about justice.

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Renew New York Issue-in-Brief  

This Issue-in-Brief is part of 2010 Renew New York, sponsored jointly by Hofstra University, Newsday, and Cablevision. See Renew New York we...

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