Unqualified? Don't Mention It
And so what became of it? Well, the Legislature ignored the Commission Report completely, since there wasn't a single vote to be milked out of it. But Chief Judge Judy Kaye picked up the ball and ran with it. Of course, she's a bit old and couldn't run too far.
Kudos to Newsday columnist Rick Brand who, for reasons otherwise unexplainable, happened to remember that the commission once existed and actually decided to remind people what a miserable botch this reform turned out to be. In NY judicial election panels fall short of plan, via Judicial Reports, Brand picks apart the Kaye revision of the Feerick reforms.
Feerick's commission urged that "no candidate may be found qualified for judicial office" if they lacked "one or more of the criteria or if the candidate has been found by the court to have violated the standards of professional conduct, or is presently subject to a court proceeding involving professional misconduct or has been found guilty of a misdemeanor or a more serious crime."
Kaye's order totally dropped such limits.
So, the good news is we now have judicial screening committees in each judicial department, and Judge Kaye actually did something when no one else in New York government even bothered to read the report. What's the bad news?
First, the scope of the screening is limited to the bare bones. Instead of looking for the best qualified, they do not better than set the low bar for qualifications. And that bar is indeed set low. But that's not the worst of it.
Candidates for judicial office are not required to go before the screening committees. So let's say you have some nasty ugly skeleton in your closet that may prevent you from passing muster under the absolute lowest possible criteria. What to do? Avoid screening at all costs and put your face on telephone poles! Now there's a confidence booster. But no, we're not done yet.
What if some candidate for the secret society of black robed individuals is so lacking in sound judgment that, despite the fact that they can't reach the lowest rung of the ladder, they still apply. Well, the good news (for them) is that the whole process is secret. Not only are the screening committees forbidden from mention who has chosen to go and not go before it, but
"There shall be no communication to the public regarding those candidates who did not participate in the commission's evaluation process or who are not found qualified."
There's the bottom line. As Rick Brand says, "a real confidence booster." While this would seem to reduce the screening committees to just below joke status, you've got to appreciate how and why such rules are imposed. This secrecy reflects a deep concern by the sitting judiciary (not to mention the political party leaders across the State), that these committees might find a sitting judge unqualified. Can you imagine the embarrassment that would cause a whole bunch of very important public officials?
One of the positions taken before the Feerick Commission, by a sitting judge who shall remain nameless, was the fear that some big shot yahoos might be put on a screening committee who would stick it to some sitting judge, whether for good reason like a gross lack of judicial temperament, sheer lack of intelligence or (in one instance that I painfully remember from a trial) the inability to speak English, or a bad reason like payback for some unpleasant experience on a case. The judge would be put in a position where the canons precluded response or reaction, leaving the judge a sitting duck and a career in potential shambles.
But this defensive posture by the sitting bench is both cynical and, frankly, a bit of a stretch. These are committees, so one angry man isn't going to be in a position to hang his personal enemy out to dry. And most people who are appointed to these types of committees are more inclined to bend over backwards to offend no one. After all, people aren't appointed to committees because they are bright, hard-working and forthright. They get there because they have managed to avoid offending anyone along the way. It's like doing an interview with Larry King. There's no better way to minimize the potential for an unpleasant question.
But one thing is for sure. Public confidence in judicial elections has now been addressed, and we need not waste any more time thinking about that little problem.