Evaluating Judicial Candidates – Debra L. Raskin

Debra L. Raskin

President’s Column, December 2014

As you read this column, the City Bar’s Executive Committee is reviewing the candidates for the upcoming vacancy on the New York Court of Appeals caused by the mandatory age retirement of Judge Robert Smith. We will be conveying our views on the candidates to the Governor later in the week. This seems like an appropriate time to discuss the Association’s procedure for evaluating candidates for the Court of Appeals, the United States Supreme Court, and the state and federal courts in New York City.

Courts in New York City

By far our most extensive work evaluating candidates for judicial office is conducted by our incredibly productive Judiciary Committee. The Committee evaluates candidates for the broad array of state and federal courts based in New York City. In the normal course of a year, the Committee may review as many as 100 candidates.

The Judiciary Committee is comprised of 50 members, diverse in ethnicity, gender, geographic area, and size of practice. This diversity gives the Committee knowledge of all the City’s courts and reflects various perspectives on the qualities judges should have to be most effective in those courts. In addition, each county bar in the City appoints three members to sit on the Committee.

The Committee’s mission is to determine if the candidate being reviewed holds the necessary qualifications to become a judge, such as integrity, impartiality, intellectual ability, knowledge of the law, industriousness, and judicial demeanor and temperament.

The first step in evaluating judicial candidates’ credentials is to request that they complete the Judiciary Committee’s Uniform Judicial Questionnaire, which seeks detailed information regarding their legal experience, education, and employment. Attorney candidates are asked to provide statements of the types of trials they have handled over the past ten years as well as a list of their ten most recent trials and contact info for lawyers, judges, and adversaries who are familiar with the work of the candidate. Candidates who are already judges are asked to provide their most recent opinions, a list of their last ten trials with the contact information of the attorneys involved, and a list of lawyers who appear before them frequently.

Once the candidate returns the questionnaire, the Judiciary Committee names a subcommittee, composed of one Judiciary Committee member who acts as chair, one member from the appropriate court committee of the Association, and a member from the relevant county bar association’s judiciary committee.

After receiving a copy of the candidate’s questionnaire, the subcommittee investigates the candidate by conducting telephone interviews with a substantial number of references, adversaries, and other appropriate contacts, reviewing the candidate’s major written work, undertaking online searches, inquiring of the relevant disciplinary agencies, and interviewing the candidate about his or her interests in, and qualifications for, serving in the judicial office the candidate seeks. Once the subcommittee has completed its investigation, it prepares a report for the full Committee outlining the subcommittee’s findings and recommending whether to find the candidate qualified (or “Approved”) for the position in question. The Committee meets with the candidate to develop its own impression and explores issues the subcommittee has discovered during its investigation.

Once the Committee has discussed and debated the merits of the candidate, members vote a finding of either “Approved” or “Not Approved.” A determination of “Not Approved” means that the candidate failed to affirmatively demonstrate that s/he possesses the requisite qualifications for the court for which s/he is a candidate. Candidates found not approved but who receive 25% of the vote or four votes may appeal the Committee’s decision to the Executive Committee.

New York Court of Appeals

The Executive Committee evaluates the up-to-seven candidates recommended to the Governor by the Commission on Judicial Nomination to fill each vacancy on the Court of Appeals. In doing so, the Executive Committee works with the Judiciary Committee and the Committee on State Courts of Superior Jurisdiction. A subcommittee is formed for each candidate that consists of one member each from the Executive Committee, the Judiciary Committee, and the State Courts of Superior Jurisdiction Committee. The subcommittee’s reviews are similar to those described above for the Judiciary Committee. The subcommittees then report their findings to the Executive Committee, which adopts one of the following three ratings for each candidate:

Well Qualified – Consistent with the term “well qualified” as it is set forth in describing the Commission’s mandate in Judiciary Law Section 63(1) and in Article 6, Section 2 of the Constitution: candidates “who by their character, temperament, professional aptitude, and experience are well qualified to hold such judicial office.”

Not Well Qualified – Candidates who may be competent lawyers or judges but, in the judgment of the Executive Committee, do not meet the requisite standard for “Well Qualified” in one or more of the constitutional and statutory criteria of “character, temperament, professional aptitude, and experience.”

Exceptionally Well Qualified – Candidates who are exceptional to the degree that they are superior to others who are “well qualified.” This rating should be given as an exception and not the norm.

In evaluating a candidate for Chief Judge of the New York Court of Appeals, the Executive Committee should consider that the Chief Judge of the Court of Appeals is also the Chief Judge of the State of New York, and the oversight and administrative powers and responsibilities that accompany this position.

United States Supreme Court

The Executive Committee also considers the qualifications of the President’s nominees to serve on the U.S. Supreme Court. A subcommittee of members of the Executive Committee and the Judiciary Committee extensively reviews the candidate’s writings and other publicly available information, conducts a large number of interviews of individuals familiar with the candidate’s work, and seeks an in-person meeting with the candidate. The subcommittee reports its findings to the Executive Committee, which rates the nominee in one of three categories:

QualifiedThe nominee possesses the legal ability, experience, knowledge of the law, intellectual and analytical skills, maturity of judgment, common sense, sensitivity, honesty, integrity, independence, and temperament appropriate to be a Justice of the United States Supreme Court. The nominee also respects precedent, the independence of the judiciary from the other branches of government, and individual rights and liberties. 

Highly QualifiedThe nominee is qualified, to an exceptionally high degree, such that the nominee is likely be an outstanding Justice of the United States Supreme Court. This rating should be regarded as an exception, and not the norm, for United States Supreme Court nominees.   

Not QualifiedThe nominee fails to meet one or more of the qualifications above.

In evaluating a nominee for Chief Justice of the United States Supreme Court, the Executive Committee also will take into account the qualities suitable to the special duties of the Chief Justice with respect to the Court and federal court system.

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In conducting these judicial evaluations, the Association is undertaking what we believe is a core responsibility to attain and preserve an effective, independent, and diverse judiciary. I thank those judicial candidates who have participated in this process and those who serve on the Judiciary Committee and other committees involved in this process for their effort and dedication.