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Commentary: A Tammany-style judgeship machine?

By: Michael Giuliano//November 9, 2010

Commentary: A Tammany-style judgeship machine?

By: Michael Giuliano//November 9, 2010

Michael Giuliano

Part of the cost of maintaining the outward assumption that judges always are non-political, hold no personal beliefs and oversee a system that always is just and fair — along with the cost of preserving the power of the political party bosses to dictate the pool of potential judges — is that judicial elections can be little more than sham choices based on name identification, party affiliation, ballot placement and secret decisions and deliberations that never are permitted to come to light.

One good reform would be the elimination of party affiliation for judicial elections.

As it is, New York has adopted the worst of all possible judicial selection systems — one of party-based elections in which supposed judicial “ethics” allow nothing of substance to be said, debated, distributed, insinuated or offered by the candidates. As a result, nothing of importance is considered by voters.

Outside of the political backrooms, the legal profession seeks to have its say in the process. The voters don’t necessarily know that or even care.

The Monroe County Bar Association rejected LaMarr Jackson and Vicki Argento as “unqualified.” Despite uncounted absentee ballots that remain, it seems certain East Rochester Village Justice Argento won on Nov. 2.

Erie County Court candidate Ken Case was roundly blasted by the legal glitterati for having the temerity to bring up an opponent’s censure as an attorney from 20 years earlier and citing the Appellate Division’s own characterization of his conduct. That was considered improper under existing ethical rules for judicial candidates.

Case also won last Tuesday.

A censure from 20 years ago largely may be irrelevant and understandable, but why is the public not supposed to know?

What purpose is served by a rule of judicial decorum during a campaign?

It paints the appearance of an old boys’ club protecting its own. Erie County “mudslinging” victim James McLeod told The Buffalo News: “This sort of mudslinging demeans all of us.”

Why is it assumed that public servants working for taxpayers are to enjoy a birthright to be free from criticism?

There is no benefit in the public’s holding an official in high esteem when he or she does not deserve it. In New York — as everywhere — it often is a safe bet they don’t.

For his part, McLeod was visibly intoxicated while making court appearances and, of interesting note, the Fourth Department (seemingly commenting on the relative lack of bite in its censure) stated not altogether unamusingly, “that he [McLeod] has discontinued his private practice and is now employed as an attorney in the public sector.” Matter of McLeod, 172 A.D.2d 131, 578 N.Y.S.2d 304 (Fourth Dept. 1991).

Evidently there is less harm done if one is intoxicated while at work.

In Monroe County, the MCBA rates judicial candidates after soliciting opinions from its members and then putting judicial candidates before its Judicial Committee, the MCBA’s version of a papal conclave. The committee meets and releases the white smoke to announce its “ratings,” which are publicized and the “unqualified” candidates must explain away their now-besmirched record. A bar association rating certainly carries an air of officialdom to it.

The committee, whose full membership is not disclosed, gives candidates the opportunity to withdraw so as to avoid having a “Not Qualified” rating made public.

In other words, along with the insider judicial conventions run by the parties, the MCBA has its own secret procedure to decide how democracy shall function. The resulting hit-and-run evaluation releases no information to substantiate a finding of “Not Qualified.” One has to just accept the committee knows best.

Argento noted that the committee rejected the overwhelming recommendation of an initial poll of local attorneys. Jackson, who nevertheless received 40 percent of the vote, blamed personal animosities for her “unqualified” rating.

The credibility of the judiciary committee’s rules is indicted by the committee’s own stated goals. Among the goals of the evaluation process is that it “shall provide the public with useful information about the candidate’s qualifications for judicial office.”

The only information provided, however, is the one or two word rating. How that is “useful information” remains unclear.

The goals also state that “the process shall establish credibility with the bar, the political parties and the public.”

That the committee conforms its process to be to the liking of political party bosses — who choose judicial candidates in backroom deals sealed from public inspection — should call into question its commitment to establish credibility with the public or the bar. It is just assumed Tammany-style machine politics is particularly effective at determining who will make a “good” judge.

The process, thus, is seeped in politics and secrecy, and gets little respect because it deserves no more.
Despite Judge McLeod’s protestations, a “demeaning” attitude toward it is in full order.

Michael Giuliano is a Rochester-based freelance writer and a senior attorney editor at Thomson Reuters.

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