When Eastern District Judge John Gleason held New York’s “peculiar” method of selecting judicial candidates unconstitutional, the hope was that it would force the New York Legislature, kicking and screaming, to finally address the manner of selecting judges all together.  What New York politicians could never do on their own was going to be rammed down their throats.  But no more.

In New York State Board of Elections v. Torres, et al., the  Supreme Court has ruled that New York will have to deal with its own mess.

The problem was that the New York political party convention system, a relic of the days of Tammany Hall (when the Democratic Party bosses gave real meaning to the phrase “ironclad control”), makes it essentially impossible for an individual who does not have the support of a party leader to have a “fair shot” at getting a nomination. 

The Court’s opinion, written by Justice Scalia, while noting that states have the power to facilitate an insurgent candidates run, held that the Constitution doesn’t demand that they do so.  The Constitution assures no one of a “fair shot.”

While fairness may be a core notion of the American psyche, it isn’t necessarily a component of American politics.  The cards are stacked in favor of political party bosses, and that’s exactly how the game was intended to be played.  It’s not impossible to disagree with the choice of the party boss.  It’s just awfully hard.

“What constitutes a ‘fair shot” is a reasonable enough question for legislative judgment, which we will accept so long as it does not too much infringe upon the party’s associational rights. But it is hardly a manageable constitutional question for judges…We are not inclined to open up this new and excitingly unpredictable theater of election jurisprudence.”

In other words, don’t ask SCOTUS to clean up your political mess.  This theme was made abundantly clear in the concurring opinions, which were as much, if not more, fun than Scalia’s majority opinion.

“I think it appropriate to emphasize the distinction between constitutionality and wise policy,” Justice John Paul Stevens said in a one-paragraph opinion that was also signed by Justice David H. Souter. Quoting Justice Thurgood Marshall, Justice Stevens added: “The Constitution does not prohibit legislatures from enacting stupid laws.”

Justices Anthony M. Kennedy and Stephen G. Breyer said: “If New York statutes for nominating and electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now.”

So there’s the invitation to New York lawmakers to take a law that everyone (other than the party bosses) acknowledges to be “stupid” and fix it.  But everyone also acknowledges that as long as the party faithful fear the loss of whatever clout, and potential to be the nominee for office, that comes with a failed attempt to kill the king, no one will have the guts to do a thing.  No one.

To the extent that New York’s stable of potential judges hoped that they would be freed of the reins of party bosses, and requirement that they pay their dues by being loyal party soldiers before their turn would come to wear the robe, their hopes are dashed against the rocky shoal of Nino’s snarkiness.

But he’s got a point.  If New Yorkers, and their representatives, ever hope to find a way out of the political swamp from whence judicial candidates emerge, they need to rise up and take charge of it themselves.  It’s our politics, and our court system.  The party bosses have no armies to protect them from their party members, and the voters always have the option of taking the path less traveled (not to mention strewn with the dead bodies of past formers).  As the Supreme Court told us, we get the judges we deserve.  Now it’s up to us.