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Most on high court appear to back how New York selects its judges

  • Story Highlights
  • Justices weigh whether state's system gives political bosses too much power
  • Judge who lost position: Process excludes rank-and-file party members, voters
  • Lawyer for state, political parties: Political parties have right to choose, exclude
  • Seven other states are reviewing their judicial selection procedures
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From Bill Mears
CNN Supreme Court Producer
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WASHINGTON (CNN) -- A number of states are reviewing how they select judges, and on Wednesday a majority of U.S. Supreme Court justices appeared to back New York's process.

The U.S. Supreme Court is examining how judges are elected.

Disputes over election processes and results have long been settled by the high court, most famously in the 2000 Bush v. Gore appeal over Florida's ballots. The judges ruled 5-4 in favor of Bush.

Justices must decide whether New York's system violates the Constitution by ceding too much power to political bosses.

A federal appeals court says that direct primary elections must be carried out to ensure party officials could not control a convention's nominating process.

Under New York's system, judicial delegates elected in a party-run primary go to a special convention where they choose the candidates, who often run unopposed in the general election.

A state judge who lost a state judicial position brought suit, saying the process excludes rank-and-file party members and voters themselves.

Margarita Lopez Torres had twice won an election to a Brooklyn civil court seat. But when she sought another post, Torres said Democratic Party officials turned their backs on her, and she could not win enough judicial delegates to get on the ballot.

She and her lawyers claim New York's party-driven system encourages "smoked-filled room" patronage and cronyism, which unfairly excludes a broader, more diverse group of qualified candidates.

Seven other states -- Alabama, Arizona, Kansas, Missouri, Minnesota, Nevada and Pennsylvania -- are reviewing their judicial selection procedures, the Institute for the Advancement of the American Legal System said.

The New York case will "put the issue on the front burner nationally," said former Colorado Supreme Court Justice Rebecca Love Kourlis, the executive director of the institute.

"When you think about the institutions that have the greatest impacts on our lives -- our homes, our children, our freedoms -- you realize there isn't any more important part of government than our courts and our judges," she said. "So how we choose them is critical, and those systems are too often overlooked by the public."

Political parties have been pouring ever-greater sums of money into state judicial elections in recent years. In 2006, 137 state supreme court candidates spent $34.4 million, much of it funded by special-interest groups, according to Kourlis.

The parties in the New York case, supported by the state, say that they have constitutionally protected rights of "free association" that give them the power to decide who they want representing them at election time, even if that power means reduced competition or voter participation.

Most justices of the court appeared to agree with attorney Theodore Olson, representing New York and both major political parties.

"The political party has the right to select its leadership, to select its nominating process, to select its candidates and to exclude members," Olson said.

But Olson's argument was met with skepticism from Justice Ruth Bader Ginsburg, who suggested the convention "gives total control to the party leaders" in the form of delegates.

"It's really a sham, because nobody is going to run for that [delegate] except the party faithful, someone picked by the party boss," Ginsburg said.

Torres' attorney, Frederick Schwarz, received a chilly reception when he said New York's system effectively "fenced out insurgents" in the party.

"The state has imposed this system on every political party," he told the court.

Chief Justice John Roberts gently reminded Schwarz both parties liked the current system.

Justice David Souter said some candidates can be fairly excluded by the party. "For political reasons, they're saying: 'We don't like you,' " he said.

Schwarz said qualified candidates are unable to "meaningfully participate" in the New York scheme.

"The difficulty that you're claiming," responded Souter, "is that it's hard for the intending judicial candidate to assemble a large enough group of people to give that candidate success once the delegates are selected. It's a success argument you're making, not an access argument."

"No, it's a compete argument, not an access argument," replied Schwarz.

Federal judges are not elected. Instead, they are nominated by the president and confirmed by the Senate. Some states follow that method, but most hold elections for judicial candidates. Some reform advocates have suggested a merit-based system of choosing judges would be fairer and less partisan.

Last year, state ballot initiatives around the country that would have made it easier to impeach judges and impose term limits failed

Former Justice Sandra Day O'Connor, who has made reforming the judicial-selection process a pet project in her retirement, will sponsor a national conference on the issue this month.

The case argued Tuesday is New York Board of Elections v. Torres (06-766). A ruling could come by year's end. E-mail to a friend E-mail to a friend

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