Electing judges has  long been a  subject of controversy in New York.  Between the limitations on campaign speech by judicial candidates, precluding anyone running for the robe from actually saying anything that might give someone a reason to vote for them, and the utter disinterest on the part of the public as to who they vote for, usually running the party line for lack of knowledge or concern, it’s just a goofy idea.

But there is a discrete group that both cares who gets elected, and knows who they want on the bench.  Yup, that would be us lawyers, and we’re the folks most likely to get the hand with open palm when it comes to financing a campaign. 

When some judge’s campaign guy looks you in the eye, with that overly sincere squint, and asks for a contribution, there’s an irresistible urge to lay your money down.  This is even more true if the judge happens to be a Surrogate, doling out gazillions of dollars of goodies, where there is a direct connection between a lawyer’s wallet and the judge’s signature hand.

To his credit, Court of Appeals Chief Judge Jonathan Lippman is trying to change the pay to play culture by  a new initiative to preclude judges from hearing cases or handing out bennies to any lawyer who has contributed $2,500 or more to their campaign.

New York’s top court officials will bar the state’s hundreds of elected judges from hearing cases involving lawyers and others who make significant contributions to their campaigns, a move that will change the political culture of courts and transform judicial elections by removing an important incentive lawyers have for contributing.

From the judicial side of the equation, this presents a bit of a problem.  If lawyers can’t contribute, then where the heck will they get the funding to run a campaign?  They’ve already tapped mom and dad, and the neighbors and folks at the club.  After that, they’re dry, as nobody else cares.  Of course, that’s the candidates problem, not the system’s, until somebody figures out that the only people who can afford to run for judicial office are those wealthy enough to cover the nut themselves and sociopathic enough to want to be a judge at significant financial jeopardy.  Bear in mind, the pay sucks.

At Point of Law, Ted Frank has come up with a different, but very astute, problem.

There’s no question that there is a problem in New York: as the Times article notes, there have been appalling quid pro quo arrangements where judges appoint campaign contributors to lucrative estate management positions that can generate millions in fees. But, as with other Chief Judge Lippman policy proposals, I wonder whether the unintended consequences have been entirely thought through. If I’m in New York state court, and dislike the judge my case has been assigned to, can I get a new judge for the mere cost of $2,500? If there’s a twelve-judge division, can a $27,500 investment ensure that I get the one judge I’d prefer my case to be assigned to?

A bit Machiavellian?  Well, yeah, but we’re lawyers.  Machiavellian is what we do best.  The numbers may be a bit pricey for your basic DWI, but when there’s a few million dollars on the line and a judge who tends not to be particularly sympathetic to clients like yours, spreading the wealth hardly seems like a bad idea.

There are a couple of aspects to the basic Supreme Court judge shopping mall that makes this a little more difficult than it might at first appear.  First, elected Supreme Court Justices serve a 14 year term and County Court Judges serve a term of 10 years, which means that the window of opportunity isn’t always open, and may not reopen for a very long time.  Second, many of the New York City judges are really Court of Claims appointees, used to fill empty slots, who don’t run for much of anything.  They don’t need your contributions.

Of course, that doesn’t mean you won’t hear a wooshing sound every time an election rolls around, of lawyers checks being sucked into campaign coffers of judges nobody wants to appear before.  After all, when the window of opportunity slams shut, it’s too late to mail in your contribution.  Decisive action is required if you hope to never appear before a judge again.

The problem raised by Ted is one of many, and I can’t recall any significant anti-corruption initiative that doesn’t have negative unintended consequences.  That’s because this is all a band-aid on a gaping wound caused by New York’s misguided Jacksonian urge to elect judges. 

And lest we forget, despite the rampant problems revealed by both the  New York Times as well as the Commission on Judicial Conduct. New York still allows  non-lawyers to be judges in its most vulnerable courts, producing a never ending source of jokes for everyone except the poor schnook who.has to appear before them.  If it costs only $2,500 to buy your way out of these courts, it would be money well spent.

In fairness, there’s likely no course for Judge Lippman to take that won’t have problematic consequences.  At least he’s trying, and my guess is that he has weighed the problems and decided that this is the right way to be.  Thus, it might be an unintended consequence, but it’s not unanticipated. He may be counting on the fact that lawyers are cheap and business is lousy to provide a counterbalance to the potential of gaming judge shopping by contributing to their campaigns.

Whether it turns out well is another matter, but that it’s got potential to wreak a little more havoc, as Ted suggests, is clear.  That’s invariably what happens when trying to find a decent solution to fix the wrong problem.