In arguments on Wednesday morning, the state and its allies in both major parties clearly had the upper hand in defending the system, which was declared unconstitutional last year by the federal appeals court in Manhattan.
The appeals court, affirming an earlier ruling by Judge John Gleeson of Federal District Court in Brooklyn, held that the party convention process by which nominees for the State Supreme Court are chosen violates the First Amendment right of political association by excluding from the electoral process not only the voters but also judicial candidates who do not have the blessing of party leaders.
But weren’t there really “two sets of rights of association,” Justice Samuel A. Alito Jr. asked Frederick A.O. Schwarz Jr., the lawyer who was defending the lower court’s judgment on behalf of the voters and the disappointed judicial candidates who brought the lawsuit challenging the system.
“You have the party hierarchy who wants to fence out the insurgents,” Justice Alito continued, adding: “Does not the right of association include the right not to associate?”
Mr. Schwarz replied, “The right of association does not include the right to use an election system imposed by the state which makes it impossible.”
Only Justice Ruth Bader Ginsburg, a Brooklyn native, appeared to express sympathy with plaintiffs, although on closer examination she was not so much arguing on their behalf as characterizing their argument. “The argument here,” Justice Ginsburg said, was that the system was “really a sham” that, while having the form of an election, really meant that “the party leaders choose the candidates.”
Under the system, which dates to 1921, party primaries are held in each Assembly district to select delegates to judicial nominating conventions that are held two weeks later in each of the state’s 12 judicial districts. These conventions have never selected a nominee not favored by the party leadership.
The lead plaintiff is Margarita López Torres, now the Brooklyn Surrogate Court judge, who as an elected Civil Court judge tried unsuccessfully to get the Brooklyn Democratic Party’s backing to run for State Supreme Court. She had angered party leaders by refusing to make patronage appointments.
Justice Ginsburg’s observation that “the party leaders choose the candidates” both defined the plaintiffs’ argument and, as other justices’ comments made clear, exposed its inherent weakness.
Several justices wanted to know what would be wrong with party leaders simply picking judicial nominees. “Just eliminate this whole folderol about picking delegates and say the county chairman shall pick the delegates, period,” Justice John Paul Stevens said to Mr. Schwarz, adding, “I don’t see why that would be unconstitutional.”
And Justice David H. Souter observed that the system for choosing federal district judges “entrenches United States senators.” He was not sure, Justice Souter continued, whether a system “in which the party bosses select the nominee is for constitutional purposes significantly different from the federal system for picking district judges.”
When Mr. Schwarz said that Judge López Torres could not get an audience with party leaders, Justice Souter replied, “There are a lot of people who go to United States senators, and the United States senators say, ‘Scram, we don’t like you, your politics aren’t good enough for us.’”
Justice Stephen G. Breyer commented that “with all its faults,” the New York system was perhaps preferable to “a system where people raise $4 million dollars from the lawyers in order to run for office.”
In his argument in defense of the system, Theodore B. Olson, representing the New York State Board of Elections, told the justices that New York had gone to the convention system after 10 years’ experience with party primaries that “spawned unseemly, expensive, and potentially corrupting fund-raising by judicial candidates.”
Andrew J. Rossman, a lawyer defending the system on behalf of Democratic and Republican party organizations in the state, called it a “sensible policy choice to put the selection process in the hands of those who have the motivation and the opportunity to become more educated about those that they’re selecting.”
The appeals court ordered the state to go back to a primary as a temporary remedy until the Legislature devised a constitutional system. That order has been suspended until the Supreme Court rules in this case, New York State Board of Elections v. López Torres, No. 06-766.
The New York Constitution requires that judges of the State Supreme Court, the trial level of the court system, be chosen by election. In April, Gov. Eliot Spitzer proposed a constitutional amendment to create a merit selection system similar to that used for the state’s top court, the Court of Appeals. Bar groups have supported such an idea for years. The proposal failed in the last legislative session.
The case attracted briefs from dozens of groups, producing some unusual divisions as well as alliances. For example, a Manhattan branch of the N.A.A.C.P. and the Metropolitan Black Bar Association, along with the Asian-American Bar Association, filed briefs in support of the system, arguing that it permitted the parties to put together balanced tickets with more minority candidates than would be chosen in a primary. But other black and Asian-American bar groups strongly disagreed and filed briefs on the other side.