This morning, the Supreme Court heard oral argument in a significant case involving the selection of trial court judges in New York, NY Board of Elections v. Torres. At issue is the constitutionality of New York state’s highly controversial system for the election of trial court judges from candidates chosen by party conventions; the delegates to the convention are selected in primary elections. The plaintiffs contend that the system violates the First Amendment political association rights of voters and candidates because the system effectively closes the door to candidates who do not have the support of party bosses, and the lower courts agreed. However, that argument did not appear to gain much sympathy from most of the Justices in the Supreme Court today.

Arguing for the plaintiffs, Frederick A.O. Schwarz, Jr. appeared to have difficulty articulating to the satisfaction of a number of the Justices precisely why the Constitution is violated by the state’s system. Ted Olson, who argued for the defendant NY Board of Elections, contended that Supreme Court precedent allows political parties to select their own candidates, and that New York’s system merely allows party leaders to act like party leaders, deciding who will represent the party. This resonated with Justice Alito, who suggested through his questions that parties may have the right to “fence out the insurgents” even if the plaintiffs have associational rights in this case. Justice Ginsburg seemed the most sympathetic to the plaintiffs’ arguments, observing that the effective selection of judicial candidates by party leaders typically resulted in uncontested judicial elections in the state.

Yesterday, The New York Times editorialized against the state’s judicial selection system, calling it “a sham” and “undemocratic,” stating that the system “ensures that… the voters do no more than rubber-stamp the decisions that are actually left to the party bosses.” The Times felt that the Supreme Court should uphold the ruling of the lower courts invalidating that system. It remains to be seen whether that will be the outcome.