Gov. Eliot Spitzer, having had a good night’s rest, has moved forward in his agenda to the issue of merit selection of judges.  For a long time now, merit selection has been the mantra for ending the dirty little backroom deals and paper bags full of money that characterized the ascension to the bench.  The New York State Bar Association has been banging this drum unmercifully, using every platitude known to man, and more than a few mixed metaphors. Ah, you say.  Finally.  It’s about time.

Slow down a second.  Hold yer horses.  While I don’t understand why every sitting judge isn’t furious with the implication that they would be on the corner selling hotdogs but for this corrupt electoral system, the concept of “merit” as a basis for selecting judges seems unassailable.  How can anyone be against merit?  Except public employee unions, of course, but that’s a different discussion.

To accomplish this seismic shakeup in a very old system, New York will require a constitutional amendment.  A lot of effort, but certainly worth it if the improvement to the system will be as vast as suggested.  But I have this nagging concern that it’s a lot of hyperbole without a lot of change.  It’s not that I’m against a better way, but that I seriously question whether anyone really has a better way.  Maybe we are changing one dubious method for another with a better name but little substance.

The argument, at least to the public, is that judges will no longer be selected by party leaders in back rooms (they used to be smoke filled back rooms before the ban on indoor smoking).  So far, fine.  After all, this makes it sound really bad, suggesting that party leaders are cynical, nefarious manipulators whose purpose in life is to thrust incompetent party-faithful lawyers on the public in positions of extreme power who will do their bidding.  Okay, a bit hyperbolic, but that is the intended impression.

So how does this merit selection thing work?  I can’t say.  Do we envision a bunch of guys walking the darkened streets of Oswego with a lamp searching for an honest man?  Will there be a contest for the best and brightest?  Or, as appears more likely, will it be the lawyer old boy club trying to earnestly choose from among their peers. 

These good government things tend to begin with a blue ribbon panel of unimpeachable important folks.  Who could complain about these mandarins of the bar?  But these are the big guys.  Biglaw.  Important.  White shoe. Noteworthy.  The sort of guys and gals who you read about in headlines that include law firms with ten names on the letterhead.  They do not tend to chat up a lot of small town, small time, solo practitioner-type lawyers at their cocktail parties.  That’s because the little guys don’t get invited to the same cocktail parties.

So, who becomes the universe of potential judges from which the merit gets selected?  My guess is it’s not going to be Atticus Finch.  More than likely, the pool of potential judges is going to be the types of lawyers that these blue-ribbon panelists hang around with and know.  Of course, the vast majority of lawyers in New York are not pulling down six figure salaries at Jones, Jones, Jones, Jones and Jones.  Especially in Tonawanda.

So, is the point to change the potential pool of judges from those licking envelopes in party headquarters to those billing 3297 hours at Biglaw (but not going to make partner)?  If that’s it, then this is a charade.  I’m all for merit selection, as opposed to lack of merit selection, but if we are going to make a monumental change in how judges are selected, then it has to be both a real improvement and a significant one. 

It’s not enough that the shift be from one group of favored lawyers to another.  It’s not enough that decisions are made in the conference room rather than the backroom.  And it’s not enough to spout platitudes to mask a change from one side of the mole hill to the other.  Merit Selection!  Yeah!  Now let’s see whether it’s for real.