Editorial: Let’s try democracy in picking our judges

The Island Now

Henry Ford once explained consumers’ choice of color for a Model T this way: “Any customer can have a car painted any color that he wants, so long as it is black.”

This is much the way Nassau County voters get to choose judges for the state Supreme Court, County Court, Family Court and District Court.

Only in the case of picking judges the decision is essentially made by the leaders of the Democratic and Republican parties – rather than the owner of a car company that was subject to charges of collusion and to anti-trust lawsuits.

This year as in past years the two parties along with the Conservative Party cross-endorsed the candidates for all 15 judicial posts up for election.

The Independence Party showed its independence, sort of, by nominating four candidates for justice of the Supreme Court. But things did not go well for the challengers.

As of election night, the top vote-getter among the Independence Party candidates was Patricia M. Blake. She received 7,718 votes.

Her opponent, Erica Prager, received 493,644 – more or less evenly split between the Democratic line with 236,538 votes and the Republican line with 234,763. Prager got an additional 21,759 on the Conservative Party Line.

Suffolk County Executive Steve Ballone, a Democrat who has often spoken out against cross-endorsements in Suffolk, was quoted by Newsday as saying it was “extraordinary that we allow this blatantly undemocratic and sham process to continue” in races for judgeships and other local offices in New York.

In defending cross-endorsements, Jay Jacobs, Democratic chairman for Nassau and the state, pointed out that under the rules of the New York State Unified Court System, candidates cannot campaign on political issues, only on factors such as their experience.

That makes cross-endorsements valuable to voters trying to make choices in the ballot booth, Jacobs said.

“When it’s the judiciary, I will bet a lot of money that other than the candidates’ mothers, no one knows who’s running or what they’re about,” Jacobs said.

This may be a true but an odd point for a Democratic chairman to make given the party’s responsibility to promote its candidates. It’s also very disingenuous.

One reason no one hears about the candidates is that they don’t have opponents. The public just might have a reason to learn about a particular candidate if given a choice.

That’s the whole reason for political campaigns.

Besides, even though voters may not have the chance to ask judges about their views on political issues, a candidate’s experience is not a bad criterion by which to judge.

For instance, you might just want someone running for a 14-year term that currently pays $210,900 a year to have actual experience as a judge – something that party-picked candidates have lacked in the past.

And even if we accept the party leaders’ contention that voters should not pick judges, why turn it over to the chairs of the two political parties – two private organizations whose leadership the public has no voice in picking, especially the 25 percent of voters who have no party affiliation?

We already support this Republican-Democrat duopoly by putting the two parties in control of the Nassau County Board of Elections and its taxpayer-funded $7.5 million budget, a position they have used to dole out patronage to party faithful at the expense of efficiency and professionalism.

Why further tip the scales with a system in which judges are picked behind closed doors and the lawyers who are selected may feel in some way beholden to a party leader? This can give the appearance of a conflict of interest and hardly inspires public confidence during trials for offenses like public corruption.

It also makes the election ballot a sham by giving the appearance of voter choice when there isn’t any. Why bother? We would be better served by just taking the names off the ballot and holding a ceremony allowing the two party leaders to anoint the judges.

Or we could adopt a system like that used for the selection of federal judges by the president and the Senate.

It would be fair to point out the less-than-desirable choices that the president and the Senate have come up with during the Trump administration. But at least the public got a chance to vote them out.

Republican and Democratic Party leaders in Nassau County maintain that cross-endorsements put the best candidates from all political persuasions on the bench and ensure that one party doesn’t control the courts. So much for the notion that judges leave their political persuasions at the courtroom door.

The leaders also said all judicial candidates were found qualified by the county bar associations this year, which is more than the Trump administration and the Republican-controlled U.S. Senate can say.

But were the candidates really the best qualified?

Lisa Cairo ran unopposed for Family Court judge – a job that will pay her $136,700 a year during her 10-year term.

Cairo is a managing partner at the Garden-City-based law firm Jaspan Schlesinger LLP. She is also the daughter of Nassau GOP Chairman Joe Cairo.

It would be nice if we didn’t have to rely on her father’s opinion that she was the best qualified for the position.

A year ago David Gugerty, then the Nassau Democratic elections commissioner and the Democratic Oyster Bay town leader, was selected – er, elected – a Supreme Court judge under the cross-endorsement deal. There he joined his wife, Helene Gugerty, on the bench. Small world.

Christopher Ostuni, counsel for the Republican majority in the Nassau County Legislature, was also cross-endorsed in 2019.

He is the son-in-law of former Republican Chairman Joseph Mondello, whom Cairo served for many years as deputy.

Ostuni pulled out after the cross-endorsements of him and Gugerty prompted a federal lawsuit by a Nassau County lawyer, Thomas Liotti, seeking to halt the practice.

Liotti argued in the suit filed in U.S. District Court for the Eastern District that once elected, judges who were cross-endorsed “are beholden to party leaders and their committees; lobbyists, lawyers and litigants who have supported them. The cross endorsements also guarantee patronage employment of law secretaries, law clerks and other court personnel hired by the cross-endorsed judges.”

Liotti also alleged that the Republican, Democratic and Conservative parties “conspired and colluded together to deprive registered voters of a freedom of choice in voting rights as guaranteed by the Fourteenth and Fifteenth amendments of the United States Constitution and the First Amendment’s freedom of association provisions.”

Liotti did not succeed in his lawsuit. But that doesn’t mean he was wrong.

Henry Ford said the Model T only came in black to improve the efficiency of production and the quality of cars.

That is more than we can say for cross-endorsements of judges by Democrats, Republicans and Conservatives in Nassau County.

It’s time to put Nassau County voters back in the driver’s seat in the selection of judges.

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