Sunday, April 22, 2012

New York’s Judicial Selection Process: What Would Plato Think?

By Molly C. Casey
Molly Casey, a third year student at Albany Law School, is a Senior Editor for the Center. She works in the New York State Legislature as a Legislative Aide to Senator Lee M. Zeldin.
She wrote this paper for the Judicial Process Seminar, Fall 2011.
This is Ms. Casey's third contribution to the Center. (See her Jerome Frank’s “Other” Form of Judicial Activism, Feb. 17, 2012; and A Reasonable Path to a Just Result: Cardozo's and Holmes' Counter to Judicial Restraint, Nov. 7, 2011.)

In discussing the selection of judges, Plato articulates a “scrutiny” that men should undergo in order to act as a magistrate in a high court of law. The process that Plato describes is designed to ensure that the best men in the community are the ones who act as the arbiters of justice since a determination made by a magistrate is final.

What Plato seems to be advocating is a hybrid of merit and electoral selection systems, where the “officers of state” designate one judge from every magistracy to “decide the causes of his fellow-citizens during the ensuing year in the best and holiest manner.” This is similar to the merit-selection process that New York uses to select judges to the Court of Appeals. The choice in New York is given to the “officers of state,” and as discussed below, under the system of merit selection, the Governor chooses one judge to sit on the Court of Appeals, from a list compiled by a committee whose members are appointed by leaders of all three branches of government.

Additionally, the Senate must confirm the individual that the Governor selects. This is truly a method that involves many “officers of state.”

Plato then suggests that the candidate selected by the officers of state be scrutinized by “the electors themselves,” which is virtually the same language used in the New York State Constitution with respect to Supreme Court judges. Thus, a hybrid system of judicial selection emerges – one that involves not only the officers of state, but the electors as well.

This was Plato’s prescription for selecting the most capable and just arbiters of justice. But the question remains whether it would work in practice. It seems that we have tried these methods, albeit separately for the separate levels of the judiciary in New York State, and neither has been wholly devoid of problems and widespread criticism.

Plato qualifies his position in The Republic when he says, “ Since [the Judge] governs mind by mind; he ought not [] to have been trained among vicious minds, and to have associated with them from youth upwards.” Translated into the modern day, this means that the judge should be kept away from the political machine in order to be pure and to avoid the corruption that could undermine the role of the judge as virtuous and honest. If the politics could be taken out of the equation, could the best, most just, and most capable judges be selected, or is Plato’s vision an impossible ideal?*
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.