The City Bar’s Commitment to the Judiciary – Carey R. Dunne

 Carey Dunne

President’s Column, September 2012

Since its founding, the New York City Bar Association has fought to maintain the judiciary as a co-equal branch of government; indeed, as many of you know, the City Bar was founded in 1870 by a group of attorneys who came together specifically to challenge judicial corruption in the era of the Tammany Hall political machine. The power of the judiciary to rule independently on the constitutionality of actions by the executive and legislative branches, and generally to consider and decide the matters that come before it with integrity, are bedrock principles which must continually be defended, even in our modern age. Equally important for public confidence is that litigants know that their judicial matters will be handled fairly and capably, and that they will be given the respect that they are due. We therefore have always worked to achieve the high quality and independence of the judiciary to which the public is entitled.

At the City Bar, much of this responsibility lies with the Judiciary Committee, which reviews the qualifications of candidates for judicial office in New York City’s federal and state courts. We are now in the Committee’s busiest season, as it reviews candidates for elective office, both incumbents and challengers. Although the Association has long advocated that judges be selected through a system of merit appointment rather than election, as long as judges are elected we will devote substantial efforts toward determining whether those standing for election are qualified. As this effort is so central to our mission (and since I, as a former Chair of our Judiciary Committee, am so proud of our work in this area), I want to review with you the Committee’s structure and procedures.

The Judiciary Committee consists of a chair, two vice chairs and 48 members who serve three-year terms, plus up to 15 “interim” members who have previously served a full term on the Committee and are appointed for six-month terms. In addition, each of the City’s five county bar associations can provide three members, who vote on candidates from their county. The Committee is composed to reflect the wide diversity of the Bar, and the broad array of perspectives necessary to evaluate a candidate effectively.

For each candidate, the Committee determines if that candidate has the necessary qualifications to serve on the court on which he or she seeks to serve, including integrity, impartiality, intellectual ability, knowledge of the law, industriousness, and judicial demeanor and temperament. The Committee does not seek to choose between candidates in a given race, but to evaluate each candidate solely on his or her merits.

For every candidate, a subcommittee is formed consisting of a member of our Judiciary Committee, a member of the appropriate “court” committee of the City Bar (e.g., the Federal Courts Committee, the Family Court and Family Law Committee), and representatives from the county bar association most appropriate to review the candidate’s qualifications. The candidate is asked to complete a detailed questionnaire, which seeks information regarding legal experience, education, and employment. We also ask candidates to provide a list of individuals who are familiar with their work, writing samples, and waivers so we can investigate any disciplinary issues that may have arisen. Candidates who are judges are asked for their ten most recent opinions and the counsel in those matters. Candidates who are lawyers are asked for their ten most recent trials and the adversaries and judges in those trials.

The subcommittee then evaluates the questionnaire, pursues any issues raised, and conducts telephone interviews with a substantial number of colleagues, adversaries, judges, and others who are familiar with the candidate’s work. The subcommittee also interviews the candidate regarding his or her interest in, and qualifications for, the position sought, and addresses any issues of concern that may arise during the evaluation. Once the investigation is completed, the subcommittee presents its report and recommendation at a meeting of the full Judiciary Committee. The full Committee then interviews the candidate, so it can develop its own impression and explore any issues that have surfaced.

After the interview, the Committee deliberates and decides whether to find the candidate “approved” or “not approved.” A finding of “not approved” means the candidate has failed “to affirmatively demonstrate that he or she possesses the requisite qualifications for the court for which he or she is a candidate.” The work and deliberations of the Committee are confidential.

All candidates found “not approved” can request a rehearing so that the candidate can provide new information which might change the outcome; the Committee Chair has the discretion as to whether to grant a rehearing. If, on a vote to “not approve” a candidate, four members or 25% of those voting, whichever is less, vote in favor of the candidate, the candidate has the right of appeal to the City Bar’s Executive Committee.

The Judiciary Committee conducts approximately 100 candidate reviews each year, so the workload is heavy. The attention paid to each review reflects the gravity with which the Committee conducts its work, knowing how its decisions can affect an individual’s career. For example, Mayor Bloomberg, as most of his recent predecessors, has agreed not to appoint anyone to a judgeship who has not been approved by the City Bar (the Mayor appoints Criminal, Family and interim Civil Court Judges in New York City).

Our Judiciary Committee also works with the Executive Committee to review candidates for the United States Supreme Court and the New York Court of Appeals. As Judge Carmen Ciparick’s term on the latter court will be concluding at the end of this year, we will soon be involved in reviewing candidates nominated by the Commission on Judicial Nomination to succeed her.

While the City Bar’s work in evaluating judicial candidates is confidential, we do issue a press release announcing our findings for candidates in each primary and general election. Beyond that, we do not comment on our process as it pertains to specific candidates. Next week and for the first time, we will circulate our evaluations of New York City judicial candidates in the September 13 th primary election to our entire membership, so that all members will be informed of the Judiciary Committee’s conclusions. We urge those of you in areas where there are primary elections to vote; as long as there are judicial elections it is important to have maximum voter participation. We will also circulate our evaluations of general election candidates just prior to Election Day.