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Leaving Politics To The Politicians

By Dan McLaughlin Posted in Election Law | Justice Scalia | Law | Supreme Court — Comments (2) / Email this page » / Leave a comment »

The U.S. Supreme Court today, in a unanimous opinion by Justice Scalia in NY State Bd of Elections v. Lopez Torres, reversed a Second Circuit decision that had overturned New York's system for selecting party nominees for trial judges. The appeals court had held that the First Amendment right to political association of prospective candidates for New York Supreme Court judgeships* were violated by the system of choosing nominees through party conventions dominated by party bosses, rather than through a more directly democratic system such as a primary.

Justice Scalia's opinion starts out with a concise summary of familiar and settled (if theoretically debatable) ground: the Constitution gives a political party some First Amendment associational rights to control its own processes for choosing its nominees, but imposes some restrictions (including Fourteenth and Fifteenth Amendment restrictions against discrimination) on a party's candidate-selection process when the state grants the party the right to a line on the ballot. But as he explains, the problem with the conventions is not any legal restriction on who can throw their hat in the ring but rather a practical, political limit to who can win those contests - a problem for which the solution is necessarily political, not legal:

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To be sure, we have, as described above, permitted States to set their faces against “party bosses” by requiring party-candidate selection through processes more favorable to insurgents, such as primaries. But to say that the State can require this is a far cry from saying that the Constitution demands it. None of our cases establishes an individual’s constitutional right to have a “fair shot” at winning the party’s nomination. And with good reason. What constitutes a “fair shot” is a reasonable enough question for legislative judgment, which we will accept so long as it does not too much infringe upon the party’s associational rights. But it is hardly a manageable constitutional question for judges—especially for judges in our legal system, where traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a “fair shot” at party nomination. Party conventions, with their attendant “smoke-filled rooms” and domination by party leaders, have long been an accepted manner of selecting party candidates. “National party conventions prior to 1972 were generally under the control of state party leaders” who determined the votes of state delegates. . . . Selection by convention has never been thought unconstitutional, even when the delegates were not selected by primary but by party caucuses.

(Emphasis added, citations omitted). The Court similarly rejected the idea that one-party rule in many parts of New York State created a constitutional problem with the party's candidate-selection process that was resolvable by the judiciary:

The reason one-party rule is entrenched may be (and usually is) that voters approve of the positions and candidates that the party regularly puts forward. It is no function of the First Amendment to require revision of those positions or candidates. The States can, within limits (that is, short of violating the parties’ freedom of association), discourage party monopoly—for example, by refusing to show party endorsement on the election ballot. But the Constitution provides no authority for federal courts to prescribe such a course. The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference. . . . It does not call on the federal courts to manage the market by preventing too many buyers from settling upon a single product.

Limiting respondents’ court-mandated “fair shot at party endorsement” to situations of one-party entrenchment merely multiplies the impracticable lines courts would be called upon to draw. It would add to those alluded to earlier the line at which mere party popularity turns into “one-party dominance.” In the case of New York’s election system for Supreme Court Justices, that line would have to be drawn separately for each of the 12 judicial districts—and in those districts that are “competitive” the current system would presumably remain valid. But why limit the remedy to one-party dominance? Does not the dominance of two parties similarly stifle competing opinions? Once again, we decline to enter the morass.

(Emphasis added, citations omitted). Justice Stevens, joined by Justice Souter, concurred with a note questioning the wisdom of the NY scheme. Justice Kennedy, joined by Justice Breyer, concurred with a lengthier ode to judicial independence:

When one considers that elections require candidates to conduct campaigns and to raise funds in a system designed to allow for competition among interest groups and political parties, the persisting question is whether that process is consistent with the perception and the reality of judicial independence and judicial excellence. The rule of law, which is a foundation of freedom, presupposes a functioning judiciary respected for its independence, its professional attainments, and the absolute probity of its judges. And it may seem difficult to reconcile these aspirations with elections.

Still, though the Framers did not provide for elections of federal judges, most States have made the opposite choice, at least to some extent. In light of this longstanding practice and tradition in the States, the appropriate practical response is not to reject judicial elections outright but to find ways to use elections to select judges with the highest qualifications. A judicial election system presents the opportunity, indeed the civic obligation, for voters and the community as a whole to become engaged in the legal process. Judicial elections, if fair and open, could be an essential forum for society to discuss and define the attributes of judicial excellence and to find ways to discern those qualities in the candidates. The organized bar, the legal academy, public advocacy groups, a principled press, and all the other components of functioning democracy must engage in this process.

Even in flawed election systems there emerge brave and honorable judges who exemplify the law’s ideals. But it is unfair to them and to the concept of judicial independence if the State is indifferent to a selection process open to manipulation, criticism, and serious abuse.

Rule of law is secured only by the principled exercise of political will. If New York statutes for nominating and electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now. But, as the Court today holds, and for further reasons given in this separate opinion, the present suit does not permit us to invoke the Constitution in order to intervene.

* - In New York, the main trial court of general jurisdiction for civil and criminal cases is called the New York Supreme Court; the state's highest court is the New York Court of Appeals.