Digitally Transparent Elections? The Sorry State of Nominating Judges in New York

Yesterday, the U.S. Supreme Court heard oral arguments in the case of Board of Elections v. Lopez Torres. The case's trial and appellate opinions chronicle a series of obstacles placed in the path of candidates seeking New York state judgeships without their political party boss’ endorsement.

The Lopez Torres oral arguments read like an open window on the backroom politics of Tammany Hall, a wink here and a nod there to the unfettered rights of each political party’s state chairman to steer judicial candidacies of maximum political reward towards aims unquestionable and unreviewable.

Does the U.S. Constitution really demand abrogating nominating qualified state judgeships in order to preserve our two-party political system? Would entrusting nominees to primary day politicking and the choice of state or county voters be so dangerous or threatening to New York’s Democratic and Republican political machines? How will our digital democracy curb such time-worn political practices or illuminate them to public view?

My Personal Example: How Politics Found the Matrimonial Courts so Inviting
Take family law judgeships, for instance. Should divorce, custody, parental alienation, visitation and child support decisions be left to judges abjectly selected for the politics of one gender outcome expected of them by the politics of the political party leaders putting them in office?

I choose offer up my personal example, because for the past five years Manhattan matrimonial litigation has ruled my life. Yes, I am a divorced New York dad. Yes like other New York dads, I’ve felt the full gender hypocrisy of that state’s matriarchal matrimonial laws. And yes despite it all, I still believe in a "liberal" agenda and work with others to achieve a civil society, one where men and women have co-equal individual, parenting, support and other basic family rights. But the politics of New York's matrimonial jurisprudence are starkly real and, in my view, threaten every son's and daughter's rights to enjoy and thrive through fatherhood and motherhood, equally.

Online research through OpenSecrets.org, traces the politics of such one-gender justice, how it happens for financial reasons and why it persists despite calls for reform of the state’s broken and and corrupt matrimonial system. In the 2004 Presidential Election Cycle, Democrats relied heavily on campaign contributions from New York City ($98.1 million), lawyers ($137 million) and women ($250 million) to finance their national, state and local campaigns. Also historically, the Democratic Party is viewed as the national party most aligned with women’s issues, so much so that every 2008 Democratic Presidential Candidate's website has a tab for "women's issues", without showing their candidate's position on, perish the thought, "men's or father's issues."

Now suppose a women’s bar or other association in New York counts among its members the leading matrimonial lawyers, judges and others involved in the state’s billion dollar divorce industry. Like many states, the “all-male” bar associations have long since disappeared, so the women’s bar association can champion women’s rights without the risk of a “men’s bar association” promoting and monitoring countervailing values or protective mechanisms. Over time, wouldn’t it be natural for a political/industry/judicial alliance to form, whereby the women’s bar and its members support Democratic candidates and fundraising, and the Democrats nominate judicial candidates favorable to women’s issues?

Despite all of New York State Chief Judge Judith Kaye’s personal and professional courage in calling for reform of the state’s matrimonial and lucrative fiduciary appointments systems and its system of appointing state court judges and its system of judicial/political patronage for lucrative fiduciary appointments in family law cases, her voice and its impact are not enough to outweigh the politics at work in assuring the profitable inefficiencies of her State’s archaic and byzantine matrimonial court system.

How else could you explain the Chief Judge empaneling as part of the State’s Unified Court System the Judicial Committee on Women in the Courts and multiple studies showing progress in attaining women’s rights, without establishing a “Judicial Committee on Men’s Rights in the Courts” or sponsoring a study to see if the rights women won over the past two decades came at the undue Constitutional and civil liberties expense of equal protection of men’s rights as individuals, fathers and husbands? How else could one explain that the members of New York’s Commission on Judicial Conduct in charge of reviewing complaints of judicial malfeasance and gender bias are predominately lawyers who practice matrimonial law (e.g., the recently censured Commission Chairman, noted Manhattan divorce lawyer Raoul Felder) or are affiliated with law firms that practice in areas devoted to matrimonial law and its attendant specialties? Has New York’s Commission on Judicial Conduct ever reviewed the abject gender bias and conflicts of interest under the ABA Judicial Code of Conduct of a judge’s membership in, or worse yet, sitting on the board and directing the policy of, a gender-specific bar association (a/k/a women’s bar association) while sitting on the matrimonial court bench? (Here, I recall the law school evidence mantra: if it walks like a duck and quacks like a duck, it’s a duck)

Matrimonial law is just one example of the politicization of law when given the vast discretionary power reposed in state judges. Because it’s ruled my life for five years, I’ve recounted some of the unacceptable impacts of New York politics at work in assuring and administering a broken system of family law, as I’ve researched and charted such interdependent impacts and influences. No doubt other industries and special interests can and should map theirs.

What are we fighting for?
Political machines - not voters - put state judges in office in New York. Whatever standard of constitutional review is found to apply, are New York’s judicial conventions anything but rigged when the judicial candidates they consider for nomination are not even allowed to appear at their judicial conventions?

Our country and its soldiers have fought decades of battles to assure us our version of protection by the rule of law. Our presidents, senators, Congressional representatives, governors, state senates and assemblies, county executives, mayors, council members and other elected official have passed so many laws that no building can hold the books they’re printed in and few hard drives can even store them in digital form. Who really knows just how to discover what the law says or means before a judge interprets it? Our litigants, their families, businesses and lawyers have brought so many cases before so many state trial and appellate judges that we’ve become say what they mean and mean what they say all, some or none of the time, based on the special interest to whom the politicized judge kowtows, and absent a system where judges are less prone to polarizing politics and more prone to Constitutional equal protection and due process in administering state law.

Lopez Torres and its progeny will be very, very important to the future health, independence and reliability of our judiciary.

A longer footnote than I'd expected
By discussing the Democratic Party's interest in New York's matrimonial courts and "women's issues", I am not being partisan or anti-feminist.

For two millenia in Western Cultures and still longer in other places around the world today, women fought for basic rights (safety, food, healthcare). The momentum for U.S. women's rights reforms took hold after World War II and accelerated in the 1960s.

Our national politics of embracing the women's rights reform movement continue today as unquestionable national political rhetoric - no matter the progress made, the rights withdrawn from men, the imbalances caused to family life or the disproportionately female opportunity for personal wealth created by high-conflict divorce lawyers and their clients preying like piranha on enmeshing men in "women's issues" cloaked as insincere concern for the "best interests" of both genders' children.

Each divorce horror story portrays one gender as culprit, filling case law full of mothers abused by fathers and fathers parentally alienated and financially bankrupted by mothers. I speak passionately, because like so many other caring New York fathers, we are living proof that the pendulum swings too far when New York's court system disproportionately micromanages our parenting, finances and lives 80% of the time, because 80% of the time mothers receive presumptive custody of our children, together with the marital home, child support and other emoluments.

There is no way to frame New York's matrimonial system's impacts dispassionately, and no continuing reason to resist saying fathers are suffering in private, when
- 50% of New York's marriages end in divorce,
- children and teenagers don't receive the daily input they need to thrive from caring, displaced fathers, and
- fathers fight so lonely a battle in New York matrimonial courts for the right to live a life free of litigation and to freely raise their children as equal parents.

Lopez Torres may partially explain how this system persists.

I hope others will share their favorite examples of the Republican and Democratic Party's hegemony of New York's courts, places that decide issues of special partisan appeal dear to New York's two-party campaign donors and voter bases.

I hope that the emerging digital democracy will track and illuminate all such partisan interests and influence throughout our judiciary.