I was first elected as a judicial delegate in Brooklyn in 1982. At that time, the conventions were very quick, they only lasted one day. The county leaders picked the judges. And most of the judges who came out of the convention in the early 1980s were white, and no one cared about how the convention worked and who got elected. That was just how it was.
I want to explain how the judicial convention works today.
Every assembly district is allotted a certain number of delegates – anywhere from five to eight people – based on the party turnout from the previous gubernatorial election. Delegates run on the slate with the district leaders, who are party officials, and they go to the convention. The judicial delegates, either by voice vote or hand vote, determine who wins the nomination for Supreme Court justice.
In the early 1980s, white judges were elected and qualified African-Americans and Hispanics could not get elected. But over the last thirty years, the population of white residents in Brooklyn went down and the African-American and Hispanic populations have risen.
Today, African-American and Hispanic populations control the two most populous districts in Brooklyn and as a result elect judicial delegates who are black and Hispanic. They have, in turn, elected African-American and Hispanic judges to the bench. We have a larger percentage of African American judges in Brooklyn than in some states. And that is a direct result of population changes, the judicial conventions, and how they work.
Because of judicial delegates, we have African-Americans and Latinos on the bench.
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From my experience, the best way can power sharing for minorities is through some kind of elective process. I have huge concerns about the merit process. I’ve looked at them; I’ve been on screening panels. The merit process does not work for me.
Look at the current situation in the merit screening process of the governor. The governor has been in office for ten years, and he has a merit process for the appellate division. The first division of the appellate division has a huge African-American and Latino population in Brooklyn and Queens. But of the 16 appellate judges in the division, there is only one African American and one Hispanic.
Of the 60 Courts of Claim judges, which are appointed by the governor, we have one African-American and three Hispanics. And the one African-American judge was a candidate for Congress and basically he was appointed at the request of the Democratic Party in Queens. It had nothing to do with merit.
The Brooklyn family court –whose judges are appointed by the mayor - services the largest minority population in the state. We have no African-American family court judges. Not one.
Merit selection boards appoint people who look like them. The judicial conduct commission has 11 members, all appointed, and has no minority representative. Under merit selection, the majority of the people in the room are not people of color. When it comes down to the question of “who is the best?” or limiting it to the best three out of ten, there is a strong likelihood that people of color will be eliminated.
There are problems with the judicial conventions, but there are things that can be done to make judicial conventions better.
First of all, we have to let the delegates determine who the judicial candidate is.
In my experience, whenever a candidate gets enough momentum to become a threat at the judicial convention, the party leader always adopts that candidate. Some would say, a person didn’t get elected because the county leader opposed them, but nine times out of ten, consensus means that they did not have enough support. Consensus means that the party is holding things together, and that is how you are chosen.
The Gleeson decision talks about a “super majority” that is needed to challenge a judicial convention, but I dispute that. In the 1980s, we ran delegates in assembly districts against delegates from the country organization.
We found that you don’t need a super majority to challenge the judicial convention. All you have to do is have enough delegates to support you – about one-third – so that you can go to the convention with enough votes to negotiate.
Here are other four ways to improve the judicial convention:
1. Make the judicial delegates public.
2. Open the convention.
3. Allow candidates to speak at these events.
4. Allow time for electioneering.
And if you are going to keep the judicial conventions, give them the right to choose. To now say, you are smart enough to be elected by the direct vote of the people, but you are not smart enough to determine who is best qualified, and we have to put a panel up here to filter who you can choose from, strikes against my sense of what electoral politics are.
When you run for State Senate or Assembly or Congress, there is not a panel to determine if you are a good candidate. The public has the ability with input from bar associations, to determine who the best judges are.
Paul Wooten heads up Paul Wooten and Associates
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I have long been a strong believer in merit selection. I personally believe it should be our ultimate goal. Unfortunately, I also think it’s not a realistic goal to be achieved in the near future.
I do not want to have open primaries. I have real questions about whether or not voters really can meaningfully cast their vote in primaries. I don’t know what issues judges are going to campaign on, or how voters can intelligently exercise their franchise.
In Texas, there is a story (that I believe is only half apocryphal). Two people try a case before a judge. The judge says, “I want the record to reflect that a lawyer for the plaintiff gave me $10,000 for my campaign and the lawyer for the defendant only gave me $5,000 for my campaign.” And the lawyer for the defense says, “Judge, can we adjourn so I can write you a check?”
If we have open primaries, the issue of money is something that everyone should be very concerned about. Public financing would partially address the issue, but it would not address how voters make their decisions.
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I do not think that you are going to be able to generate a consensus for merit selection anytime in the foreseeable future. I do not think that you are going to be able to generate consensus on public financing for judicial candidates. If we believe that, I think we are kidding ourselves.
So if we are not going to get merit selection and if the open primary approach is not particularly desirable, then let’s look at the judicial conventions system and ask what is wrong with it and see if it can be corrected.
I think there are two fundamental problems with the convention system. As Judge Gleeson pointed out, it is virtually impossible for anyone who wants to buck the county leader to get elected. So, we have to look at how you can correct that.
The second issue is the “Clarence Norman” problem. Testimony in the case demonstrated that the county leader has had virtual dictatorial power of the quality of the people coming out of the system. There are a lot of judges who should be on the bench. But there are also a lot of people who were able to make deals and they should not be on the bench, but they are.
So how do you correct these flaws?
1. Easier Ballot Access
The first flaw, which I’ll call the constitutional flaw, has two basic issues. One is the number of signatures required for a delegate to get elected. Both the Feerick Commission and Mayor Bloomberg have suggested that you change that 500-signature requirement to 250 to make it easier for people to get on the ballot.
2. Fewer Delegates
The second issue is that under the current statute each party can determine how many delegates there should be at a judicial convention. So if you have a large convention, and you want to run as a maverick candidate, you not only have to get a lot of signatures, but you have to have support from a lot of people at the convention.
Mayor Michael Bloomberg has proposed that the smallest assembly district within the particular judicial district has one delegate, and that the number increase based on population in each district. The Feerick Commission suggested that you have weighted voting to achieve the same balance. Either way, you have to cut down the number of delegates.
3. Screening Panels
So how are we going to ensure that the most qualified people come out of the convention system and not just people who pass some minimal professional criteria?
Unfortunately, the New York State Constitution gets in the way of this. The constitution says that the only qualifications for judges is that you have to be a certain age and you have to have practiced law for a certain period of time. You cannot say that you have to be found “highly qualified” to run for judge.
But what you can do – and this is what the Feerick Commission, Judge Judith Kaye, and the mayor have all proposed – is set up a judicial qualification commission. The commission finds the people at the convention who are qualified to be a judge.
The mayor has pushed this one step further; he has suggested that the qualification commission find the three most highly qualified candidates for each slot.
You cannot mandate that the convention only select from those three people, but if you have a statute and you create this commission I would hope that this would force the parties to adhere to the recommendations of the qualifications commission.
There can be lengthy debate – if we get that far – as to who should pick the members of the judicial qualification commission.
However that is done, you must establish an independent judicial commission and then you ask those people to find the most qualified people. Those are the names are presented to the convention. I think this would change the entire dynamic. We have an opportunity. I hope we can get the State Legislature to wake up and take on this debate.
Michael Cardozo is the corporation counsel for New York City
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It all seemed a little creepy -- a cross between "American Idol" and one of those sadistic social science experiments from the 1960s -- when, on the first night, the foreign artist-contestants arrived in the Chelsea gallery, handed over their passports to the stern-looking young man in a uniform, and sat on their assigned mattresses in a row along a barren wall. They had become detainees.
"Before I got here, I was really nervous," Maria Sanjines, an artist from Colombia, South America, told me. "And now I see why."
"I didn't know this would be so extreme," said Dusanka Komnenic, an abstract painter from Serbia and Montenegro.
The two women were among the ten foreign artists from four continents who had been selected to participate in AsylumNYC, a week-long art competition and exhibition held last month at the White Box gallery.
Only two things were clear at the outset. First, the winner of the competition would get the free services of an immigration lawyer, who would help them apply for a particular type of visa for "extraordinary ability in the field of arts" that, if granted, would enable them to stay in the United States for three years.
Second, little else was clear -- not how the 10 finalists were chosen out of the 235 artists from 43 countries who applied; not how the winner would be chosen; not why the finalists were being asked to eat and sleep for five days and nights in the gallery under a set of draconian and arbitrary rules. They were not allowed to leave their assigned space without permission, could not talk to each other, could only speak to visitors and only in English, and were required to create a work of art using only materials that they could wrangle from visitors to the gallery. They were given a prison-drab green t-shirt to wear.
“We're creating an impossible situation, and we're making an impossible choice," said Martin Rosengaard, the man wearing the uniform (which, with pink piping and epaulettes, looked like an outfit that Michael Jackson might wear.) He is a member of the Berlin-based art collective, Wooloo Productions, that came up with AsylumNYC, the latest of their art projects.
”The first day I was depressed,” Valeria Cordero, an artist from Venezuela, said on the third day. “I understand what they’re doing now. They’re replicating the conditions that immigrants face. This is not really about art, it’s about immigration.”
Taylor and Kat and Ace and Mandisa and Bucky knew what it took to become an American Idol. But for Dusanka and Maria and Marlina and Nao and other foreign artists, the rules for becoming an American -- or even just performing in America -- can be excruciating.
Artists who wish to come to the United States face many of the same barriers that confront any immigrants, along with some additional obstacles.
"It's always been completely different to get immigration services for artists than anybody else," says Leon Wildes, a practicing immigration lawyer in New York for 45 years who is best known for having successful represented John Lennon and Yoko Ono in the government's efforts to deport them. "The law has always been based on having an applicant for immigration be sponsored by an employer, who guarantees a salary and so forth. But most artists are self-employed; nobody wants to hire a fine artist or a composer. The government has never amended the law to accommodate artists."
Nao Matsumoto, a furniture maker from Japan who now lives in Brooklyn (and one of the ten AsylumNYC finalists), certainly does not feel accommodated. “I don’t understand why we need a sponsor to apply for any visa. I have seen enough examples of employers completely manipulating immigrant workers using the green card or the work visa as leverage to make them work in bad conditions.” Nevertheless, artists and craftsmen must seek out a sponsor, and so, he says, “it is not what we as individuals want to do in this country, but what the sponsor wants to do using us.”
While Matsumoto expresses some sympathy with the foreigners who are in the United States illegally, he also is frustrated that so much attention has been on them lately, while those in the country legally can also face difficulties; his own legal visa is running out in a few weeks. “I am a professional craftsman and I have had all my higher education, undergrad and graduate, in the U.S. I have been living in this country for 12 years abiding by all the rules as a legal immigrant, paying taxes every single year. At this point, my feelings are, why not let me stay?”
Shahzia Sikander is one of the lucky artists from abroad. Born in Pakistan, where she attended the National College of Arts, Sikander came to the United States to study at the Rhode Island School of Design. On one of her first visits to New York City, she recalls, she went to the Drawing Center, and told them “I have my work with me. Can I show you?” They said they had only ten minutes to look at it. But that, as it turns out, was all it took: “They accepted me into a show.” Her modern take on traditional miniature painting soon was exhibited at museums such as the Whitney and the Museum of Modern Art. Now living in New York City, Sikander has an EB-1 visa, a category that accepts her as an artist of exceptional ability and allows her to stay in the United States as long as she wants. But even she does not sound please at the way things are set up. ”It took eight years,” she says. “I couldn't leave the country. It was kind of an imprisonment.”
Not all foreign artists would like to live here. Some merely want to visit – musicians, dancers and artists to perform, visual artists to accompany exhibitions of their work. That has become increasingly difficult as well.
”There are only 10,000 O-1 temporary visas for solo performers granted in the entire United States each year,” says immigration attorney Daniel Aharoni.
And in the past five years, it has been more inconvenient to get hold of those visas. "Since 9/11, the government must eyeball every applicant," Aharoni says. In those countries where there are no American embassies or consulates, the applicant must make a trip to the closest one, which can be quite far away.
This is an inconvenience felt not just by the artists, but by their (would-be) American audiences.
The cellist Yo-Yo Ma told Congress last month the story of two Iranian musicians who have performed in the United States some 10 times over the past decade, yet were forced to fly from Iran to Dubai three times in order to obtain a visa from the American embassy there in order to perform for an 11th time in the United States. “The process cost $5,000 and lasted three months,” Ma said. Other musicians, “Zola, one of the prodigies of the long-song tradition in Mongolia, and Wu Tong, the virtuosic Chinese Sheng player and singer,” were shut out completely. "It is on behalf of these culture guides that I am here today to urge you to simplify the visa process," the cellist testified in front of members of the House Government Reform Committee, so that there will no longer be such "extraordinarily high" barriers to have foreign artists visit the United States.
The visa application process for artists is so complex that a number of non-profit agencies have put together a Web site, Artists From Abroad, as a guide to the "principal nonimmigrant work-related visa categories used by the performing arts world." (Among the questions it tries to answer – what tangible proofs one needs to persuade the authorities that one is an artist of extraordinary ability.)
Dusanka Komnenic will get some help navigating the process. At the end of the week, Rosengaard and the other members of Wooloo announced that Komnenic had won the right to consult with the immigration attorney, Daniel Aharoni, who was waiving his usual fee of up to $10,000. They did not really explain why they had selected her. Perhaps it is because she had rebelled against the “border” in black tape that had been put up around her mattress, by putting more black tape on the ground and up the wall, “to cover the border, so that nobody could find it” – a metaphor for all those artists and immigrants, and immigrant artists who, she says, "do not want to be excluded."
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