Court Lets 'Party Boss' Law Stand, Reluctantly

By Robert Barnes
Washington Post Staff Writer
Thursday, January 17, 2008

If it's possible for Supreme Court justices to uphold a law while holding their noses, that's what happened yesterday when the court delivered a unanimous victory for party bosses and "smoke-filled rooms" in New York.

The state's convoluted process for electing trial court judges may discourage outsiders, empower party bosses and even be bad policy, the court said, but it is constitutional.

"None of our cases establishes an individual's constitutional right to have a 'fair shot' at winning the party's nomination," Justice Antonin Scalia wrote for the court.

Challengers to the system have asserted that it is almost impossible for a candidate to be elected as a New York Supreme Court judge -- the name the state gives its trial courts -- without being a party nominee. Since 1921, the state has allowed the parties to employ a complicated system of petitions, delegates and conventions to choose their nominees for the general election, a process that gives great sway to party leaders.

The U.S. Court of Appeals for the 2nd Circuit agreed with unsuccessful candidates and a watchdog group that challenged the system and struck it down.

But the Supreme Court said there is nothing in New York's process that violates the Constitution. "Party conventions, with their attendant 'smoke-filled rooms' and domination by party leaders, have long been an accepted manner of selecting party candidates," Scalia wrote.

More broadly, the opinion said, "A political party has a First Amendment right to limit its membership as it wishes and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform."

Still, in upholding New York's process, some members of the court were highly critical of it.

Justice Anthony M. Kennedy wrote a concurring opinion, joined by Justice Stephen G. Breyer, that said New York should consider a change. The concept of judicial independence is hurt "if the state is indifferent to a selection process open to manipulation, criticism and serious abuse."

Justice John Paul Stevens, joined by Justice David H. Souter, also wrote separately to "emphasize the distinction between constitutionality and wise policy." Stevens added: "But, as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions, 'The Constitution does not prohibit legislatures from enacting stupid laws.' "

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