When Judge Margarita Lopez Torres launched her battle to get to the Supreme Court, it was the New York State Supreme Court in Brooklyn that she was reaching for. Instead, her challenge to Brooklyn politics and to the way New York state judges are elected, wound up this week at the Supreme Court of the United States.

The challenge that she lost in local Democratic clubhouses but won in the U.S. District Court and the U.S. Court of Appeals was argued at the highest court in the nation, the court of last resort. The nine justices heard arguments as the state sought to overturn the lower court rulings. They will now determine whether New York's system of electing State Supreme Court candidates is unconstitutional.

Lopez Torres, currently a Kings County Surrogate Court judge, arrived at the Washington courthouse on October 3 with her husband and her impressive legal team. But just as she could never get a seat at the table of Brooklyn judicial politics, Lopez Torres also was not seated at counsel table at the U.S. Supreme Court. She sat in the general audience without anyone seeming to notice who she was or that she was the person who started the case.

More than 20 New York State judges, all of whom have been elected under the convention system, were in the audience along with legal luminaries, including Victor Kovner, president of the Fund for Modern Courts and Arthur Eisenberg of the NY Civil Liberties Union.

The most formal of all American institutions, the home of the third branch of government is not your local family or criminal court. Silence in the courtroom! No water, no electronics, no cameras. But in a nod to modernity, the restrooms, at least the women's, do have baby-changing tables. There are strict seating arrangements as to where members of the Bar, the press and the public each enter and sit. Decorum is closely monitored. Note taking is banned, except for journalists. Seat reservations are required, though some space is available for the general public.

The Case

As a Civil Court judge, and a former poverty lawyer, Lopez Torres tried for several years to rise from the lower city court to the trial level state Supreme Court. She failed for reasons she contended had nothing to do with her qualifications and everything to do with politics and her refusal to defer to Brooklyn politicians. New York's system of electing the justices, she argued, lets those politicians control the process. Rather than being chosen in a party primary, candidates for the state Supreme Court are selected by delegates to a judicial convention. Those candidates are then virtually assured of election.

Lopez Torres, along with nine co-plaintiffs who are neither judges nor candidates for judgeships, brought suit against state Board of Elections challenging the system. They have succeeded thus far in convincing a federal trial judge and a mid-level appeals court that the convention system denies would-be judges and voters equal protection under the Constitution and violates the first amendment. This is not, however, a discrimination case.

Lopez Torres is represented by the Brennan Center for Justice at NYU School of Law and Arnold & Porter. On the other side, the New York County Democratic Committee, the New York Republican State Committee, the Associations of New York State Supreme Court Justice and the New York attorney general appeared in the case. Amicus, supportive briefs were submitted by numerous bar associations and organizations. The Asian American Bar Association of New York and the Mid-Manhattan Branch of the NAACP filed for the Board of Elections and the American Civil Liberties

Union

and the Asian American Legal Defense & Education Fund submitted briefs on Lopez Torres' side.

 

Presenting The Arguments

The arguments centered on whether the fact that a system "allows party leaders to defeat the aspirations" of a would-be candidate makes it unconstitutional. Early in the litigation, the state focused on defending against charges that the nominating process is "a fertile source of corruption ... that impedes the search for judicial excellence" and creates "a locked gate, to which those in control of the party machinery hold the key." Since then, the state has shifted from that to focusing on the rights of political organizations to control their procedures. These procedures, the state maintains, did not deny Lopez Torres access to the general electorate.

The question is whether candidates for state Supreme Court not favored by a political party's leadership have a First Amendment "associational" right to "a realistic opportunity to participate in the candidate selection process" and to free association with the voting public (and vice versa). While the current process may impose burdens on "insurgent candidates" or "disappointed office seekers," the state argues that that does not make the existing process invalid or unconstitutional.

Former U.S. Solicitor General Theodore Olson, representing the state Board of Elections, argued that reasonable access to the general election process is all that is required. Under the state's current system, he said, it may be difficult, but it is not impossible for someone to get on the general election ballot without organized political support. The requirements only become unreasonable, Olson argued, if the "insurgent" simply cannot get on the ballot. But, he noted, Lopez-Torres did gain some support at one convention and could have run in a general election with another party's backing or independently.

Olson also argued that judicial hopefuls have "no constitutional entitlement to interject themselves into the decision of a political party" as to who will be their candidate in the November election. In fact, Olson, an appellate lawyer well known to the justices, submitted in a written brief that the federal courts that denounced the convention system in this case had reached a "revolutionary conclusion."

Arguing for the New York County Democratic Committee, Andrew Rossman, the most riveting of the three lawyers who addressed the court, said that voters elect delegates to the convention and vote again in the general election. There is, he maintained, no constitutional right to a primary system or even to a direct relationship between the candidate and voter.

"The availability of a contest is key," Rossman argued. The fact that voters may be apathetic about judicial elections is "not a constitutional problem." In fact, Rossman reasoned, it is the delegates who have educated themselves, and who have "knowledge and motivation that is superior to that of the general voting public.".

 

The New York County Democratic Committee and the New York Republican State Committee contend that Lopez Torres had the opportunity to participate but did not have a right to demand more. Addressing the argument that the Democratic Party controls the process, they pointed out in written submissions that the last two mayors of New York City were elected as Republicans.

Representing the Brennan Center and the Lopez Torres plaintiffs, Frederick A.O. Schwarz Jr. stressed "the severe burdens placed on insurgents" makes it impossible for a candidate not in political favor to be elected. The fact that that has never happened, he said, leads to the inference that it cannot happen. Yet six judges had testified at the 2004 hearing that they had become candidates of the Democratic Party without the support of the leadership.

But just because a person cannot be elected does not mean the candidate did not have access to the process and the opportunity to participate or be considered, Justice David Souter interjected. He distinguished between "a right to success and a right to get a chance." Success versus access seemed to be the justice's test.

Still Schwarz described the present system as the "worst of all worlds." He relied on the opinion of the state chief judge, Judith M. Kaye (who is appointed and has never been elected), has said that the problems raised in this case are "systemic."

Olson, had the last word: "Party leaders acting like party leaders is expected. That doesn't make it unconstitutional."

Awaiting a Decision

The U.S. Supreme Court hears very few cases -- just 80 last year -- selecting only those it deems most important and far-reaching, or where lower court decisions have had contradictory results on an issue. Since New York's convention system for choosing Supreme Court justices is unique, observers were surprised that the case was placed on the docket. Some experts have speculated that the court might have accepted the case expressly so it could reverse the prior decision.

Unlike many cases coming before the court, this one does not have clear "liberal" or "conservative" positions. Nor are the justices' reputations or the questions they asked likely to provide any guide to how they view this case.

Some of the justices will give deference to the existing system because it was enacted by the state legislature. Douglas A. Kellner, a state election commissioner and a named defendant in this lawsuit, notes that some may liken the judicial convention delegates to delegates to presidential nominating conventions.

One New Yorker sits on the bench: Justice Ruth Bader Ginsberg. A native of Brooklyn, she grew up just a few miles from where Judge Lopez Torres lives. She, however, was appointed to the U.S. Court of Appeals in Washington by President Jimmy Carter and to the Supreme Court by President Bill Clinton and so was never involved in the state judicial system. Knowledgeable predictions are that she will vote to affirm the finding of unconstitutionality.

At a reception following the argument Rossman, who argued in favor of the current system, was asked how he thought it went. "I thought it went very well for us," he said. "I don't know how the vote will go but I'll take any five," referring to the majority needed for either side to prevail.

Standing alone at an elevator in the courthouse, Margarita Lopez Torres did not want to make any prediction, but whatever happens, she had her day in court.

A decision could come down anytime before the summer. While no bets were being taken, this column fully expects a reversal from the Supreme Court of the United States and a finding that the present convention system is not unconstitutional.

Emily Jane Goodman is a New York State Supreme Court Justice