Politicizing the Judicial Selection Process

, New York Law Journal

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Richard J. Schager Jr., a partner at Stamell & Schager, writes: The concept that a nominee to the Court of Appeals should be a "representative" of an ethnic or social group, however antithetical to the New York Constitution and the Judiciary Law, is the direct result of the politicization of the judicial selection process by the rules of the Commission on Judicial Nomination.

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What's being said

  • Susan Tobey

    The office of court administration, its advisory panels and commissions repeatedly resort to their purported rule making authority to effect de facto amendments to statutes and constiutional provisions like the one pointed to in your excellent essay. Such conduct is highly objectionable because it undermines the fundamental notions of independence and impartiality upon which judiciary is founded. The ends of justice are not served when those charged with upholding our constitutional and statutory provisions disregard and dismantle them by the promulgation of rules that conflict therewith. The seemingly unlimited and cavalier resort to rule making processes to promote the social, political and ecomic agendas of the rule makers themselves, poses a real threat to the indpendent judiciary we have always known in this state.

    That the judiciary should remain detached from and unaffected by socio-ecomomic and political matters which swirl around it is clear as these notions provide the basis for the cannons of judicial conduct by which all judges in New York are bound. They further serve to distinguish the judiciary from the executive and legislative branches of our state government. Many recent rules promulgated by court administrators are repugnant to these notions as they encourage partiality and judicial sympathy by requiring that judicial and non-judicial personnel assist certian classes of civil litigants. Others, like those commented upon in your essay, promote affirmative action. These rules are thus repugnant to existing laws and rules and such repugnancy should have been known to the rule makers at the time of promulgation.

    We are thus left with the uneasy notion that the rule makers believe they are above existing laws, rules and constitutional provisions. If such is the case, the judiciary is, indeed, at risk. The repeated misuse of rule making authority vested in the leaders and commisions of the judiciary must no longer be tolerated by either the bar or citzenry of this state.

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