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Summer 1995
   
The Feds' Orwellian War on New York's Courts
Heather Mac Donald
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When New York State legislators added judges to New York City's overburdened trial courts in 1982, they little imagined the fallout in 1994: a massive federal assault on the state's judiciary. Nothing, after all, could have seemed more reasonable than adding the new judgeships. The city's criminal justice system had long been in a state of crisis, as it is today. In the Bronx County Courthouse, for example—with a backlog of 20,000 cases, many dating from 1990—most homicide cases coming to trial are over two years old. By the time many defendants get to court, they have committed another eight or nine crimes. Every day, cases are postponed indefinitely for lack of judges to hear them.

By responding to this overwhelming need, however, the Legislature unknowingly marched into a quagmire: review under the Voting Rights Act of 1965 by the civil rights division of the Justice Department.

The dismaying drama that followed suggests that the country's civil rights machinery has spun out of control. Not only did the Justice Department put the state and city through months of costly administrative and legal turmoil; it did so without legal authority. Indeed, for years the department has operated outside its mandate, relying on the act's Byzantine complexity to shield it from public scrutiny.

Although the Justice Department has a long history of overstepping its power under the Voting Rights Act, its attack on New York's courts particularly typifies the approach of the Clinton administration's civil rights division, which under Assistant Attorney General Deval Patrick is suffused with the unshakable conviction that racism pervades every American institution. In the New York case, the division attacked as discriminatory a judicial selection system wholly controlled by minorities.

The ability of the Voting Rights Act to wreak havoc on legislative redistricting is well known. But the federal government and civil rights groups are also wielding the act to impose racial quotas on state court systems. New York's story provides a disturbing glimpse into the use and abuse of a law that increasingly shapes government nationwide.

The Voting Rights Act of 1965 was a triumph of the civil rights revolution. Though the Fifteenth Amendment had guaranteed blacks the vote since 1870, virtually impregnable barriers kept them away from the polls in the South—above all the literacy test, shamelessly manipulated by southern states against black would-be voters. The Voting Rights Act banned literacy and other voting tests in southern states for five years, leading to massive black enfranchisement that changed the region's politics forevermore.

Ultimately, though, another provision of the act has had the greatest impact on the political landscape—and has caused havoc in the New York case. Section five of the act required six southern states and many southern localities to submit every change in voting procedure to the Justice Department for pre-clearance. The emphasis is on "every" moving a voting booth or changing the registrar's phone number required review. If the department decided that the proposed change had either the purpose or the effect of diminishing minority voting rights, it denied pre-clearance and blocked any upcoming elections based on the proposed change.

As Justice Hugo Black observed in 1966, to require a state or locality to submit legislation to Washington for approval creates the impression that the states "are little more than conquered provinces." But in 1965 such an extraordinary expansion of federal power was essential to protect the franchise of southern blacks and prevent states from circumventing the ban on literacy tests by inventing new barriers to the vote.

Section five, intended as a temporary measure, quickly became entrenched. Subsequent amendments to the Voting Rights Act prolonged its life indefinitely and extended it beyond the South. Today section five covers nine states and 45 localities nationwide, including Manhattan, Brooklyn, and the Bronx. The Justice Department receives 19,000 pre-clearance requests a year.

Section five's vast power over state and local governments has not been great enough for the Justice Department. As Abigail Thernstrom lays out in Whose Votes Count? Affirmative Action and Minority Voting Rights, the department has expanded the section's reach far beyond congressional intent and in violation of Supreme Court precedent. Section five has become the department's most potent tool for forcing radical changes in governance from localities. Justice's attack on New York's court system is a case in point.

The New York State Legislature unknowingly triggered section five in 1982 when it authorized the addition of ten new seats to the State Supreme Court in Brooklyn. (New York's primary trial courts, supreme courts adjudicate felonies and large civil suits.) The Legislature never dreamed in 1982 that increasing the number of judges had anything to do with voting rights. Indeed, it remained an open question until 1991 whether the Voting Rights Act even applied to the judiciary. Several courts had concluded that a law intended to guarantee minorities the right to "elect representatives of their choice" had no bearing on a non-representative branch of government. Civil rights advocates and the Justice Department, by contrast, sought to apply the act to the selection of judges to gain the same proportional representation on the bench that they demanded for legislatures. In 1991 the U.S. Supreme Court settled the matter in favor of judicial application.

Even so, it doesn't follow that adding judges to a court constitutes a change in voting procedure, when the method of electing them hasn't changed. Nevertheless, Justice—with ratification from the courts—has forced jurisdictions to pre-clear every judgeship they create.

Because of a bureaucratic snafu, New York didn't seek pre-clearance for its new judgeships even after the Supreme Court's 1991 decision. But in 1993, the state inadvertently alerted the department to the new positions when it submitted for pre-clearance a minor change in the qualifications for judicial candidates. Sniffing new quarry, Justice demanded to see every proposed or enacted law affecting judges since 1968. Upon reviewing the list, Justice preposterously demanded that New York pre-clear some 40 laws passed over a decade. Nearly all the laws had nothing to do with voting rights-for example, an act to increase the pensions of Family Court judges. In July 1994, New York dispatched a delegation of state attorneys to Washington to try to pare down Justice's demands. After further negotiations the state persuaded the department to settle for a mere four laws: three (including the original 1982 law) that created 15 new Supreme Court judgeships in Brooklyn and the Bronx and one that significantly changed the judicial nominating process. Two of the new seats under department review would be on the ballot in November, making pre-clearance an urgent necessity.

Justice demanded thousands of pages of documents; the effort to comply nearly paralyzed the state Office of Court Administration. The Senate and Assembly election law committees, the city Board of Elections, and the state attorney general's office all spent the summer of 1994 photo-copying. "Every time we provided what Justice asked for, they came back with ten more requests," recalls Mark Glazer, an Assembly attorney. Adds former first deputy attorney general Kenneth Munnelly: "We were feeding a tiger that was getting stronger and stronger."

Justice's requests included:

  • a list of all members of the 1982, 1990, and 1994 New York legislatures (which authorized the additional judgeships), identified by race and ethnicity;
  • a list of all legislative committees in those  years by race and ethnicity;
  • a list of every delegate and every candidate for delegate to the state's judicial nominating conventions since 1981-over 2,000 people-identified by race and ethnicity;
  • the minutes of all nominating conventions since 1981;
  • every judge who had served as an acting Supreme Court justice since 1981 (a list that would take perhaps a year to generate, since acting judges can serve as briefly as 24 hours for the purpose of criminal arraignments);
  • all newspaper articles on the addition of new judges;
  • all correspondence between the Office of Court Administration and the State Legislature on the need for more judges;
  • transcripts of all government telephone conversations regarding court mergers;
  • every comment of every legislator regarding the judiciary; and
  • judicial election returns from 1980 to 1993, analyzed by race and ethnicity.

Justice's paper chase aimed to show that minorities have "less access" than whites to the judicial selection process in New York City. That process is highly political—and in New York City, Democratic politics is the only game in town. Party leaders and political clubs control judicial nomination; no judicial candidate put on the ballot by the Democratic Party has ever lost.

Justice argued that this insider process shuts out minorities, but no amount of paper could possibly prove that, for minorities have become well-established insiders. The Democratic Party chairmen in Brooklyn, Manhattan, and the Bronx are all black or Hispanic. In plain fact, minorities control the selection of judges in those boroughs.

What's more, since 1991, half of all judges nominated and elected to the Supreme Court in Brooklyn have been minorities. In the history of Brooklyn's judicial district, every minority who sought judicial nomination has been elected. In Manhattan, blacks are disproportionately represented on the Supreme Court, even though the number of black attorneys who have been at the bar for ten years—a prerequisite for judicial nomination—is quite small. In the Bronx; the number of Hispanic judges is proportional to the Puerto Rican population. And in the 1994 election—whose fate lay in Justice's hands—four of the eight non-incumbent candidates for the Supreme Court were minorities.

The Justice Department, however, has a simpler test for discrimination. Because the overall proportion of minorities on the bench in New York City is less than the proportion in the population at large, the department concluded, the selection system must be biased.

Justice's argument overlooks the glacial nature of change on the bench. Supreme Court justices serve 14-year terms and are traditionally reelected; vacancies are infrequent. Minorities began entering the profession in significant numbers only recently; though their numbers on the bench are increasing rapidly, it will be a while before they could conceivably achieve proportional representation.

These facts did not impress Justice. In late September another delegation of New York's legal and political elite traveled to Washington to try to persuade the department to call off its assault. The trip accomplished nothing. By then, says former state deputy attorney general Kenneth Munnelly, "it had become painfully obvious that the line [staff] attorneys were not buying our position," and that they were calling the shots.

As November approached, then-state Attorney General G. Oliver Koppell realized that Justice wasn't going to act on the state's pre-clearance request before the election, despite a year of document production. Justice's inaction put the state in a vulnerable position: with two unpre-cleared judgeships on the ballot, any voter, not to mention the department itself, could sue to enjoin the election. Rescheduling the election would have threatened the city's judicial system with chaos.

Justice's position regarding the two unpre-cleared seats complicated negotiations enormously. The problem was this: the ballot in November would list 12 judicial candidates on the Democratic ticket: eight for Brooklyn, four for the Bronx. Four of those candidates were incumbent white judges seeking reelection; the remaining eight (including four minorities) were running for six seats created before 1982 and the two unpre-cleared seats. The judicial nominating convention had selected two black candidates for the two new seats.

But the ballot in general elections does not identify which candidates are running for which seats-all candidates run as an undifferentiated group. From this fact, Justice made a far-fetched argument: any of the 12 candidates, including the four white incumbents, could be running for the unpre-cleared seats. Justice demanded that New York take two judges off the ballot-but not the two minority judges actually running for the new seats.

This demand did not sit well with the incumbent judges. "A week before the election, we were put into a state of panic," says Jules L. Spodek, one of the four incumbents. They hired their own attorney; the fees, according to Judge Spodek, have been "devastating."

With negotiations stalled and barely two weeks to go before the election, Koppell filed a motion with the federal District Court in Washington, D.C. (the only other forum with the authority to preclear electoral changes), asking for approval of the new judgeships. The court refused to act on the state's motion before the election. It agreed, however, to an unprecedented last-minute settlement between Koppell and U.S. Attorney General Janet Reno that allowed the election to go forward but prohibited the newly elected judges from being seated until either the Justice Department or the court resolved the issue.

By this time the White House had gotten involved. "We had to turn to a higher authority to point out that DQJ [the Department of Justice] was running roughshod over a Democratic system," says Jeffrey C. Feldman, executive director of the Brooklyn Democratic Party. In the fall and winter of 1994, Feldman and others within the New York delegation were in regular contact with presidential advisors about the case. They learned that Justice had told the president's counsel that it had uncovered a scheme in New York to discriminate against minorities. There was of course no evidence for such a claim—only Justice's bizarre theories.

Feldman believes that without White House pressure, Justice never would have agreed to the election. But beyond the minimum of allowing the election to proceed, Justice didn't budge.

Predictably, the full slate of Democratic judges won in November, bringing four minority judges to the bench. Hoping finally to persuade Justice that the system was fair to minorities, New York sent another delegation to Washington, this time consisting of the newly elected minority judges, other minority leaders, and the state's top lawyers. Jeffrey Feldman describes the scene: "There you had the state attorney general and the chief administrative law judge of New York sitting across the table from four punks from DOJ telling us to go to hell. It's frightening how much power the Voting Rights Act gives to a 24-year-old junior attorney. They can stop elections and pull judges off the bench."

Again, New York's effort was futile. On December 5, Loretta King, the acting assistant attorney general of the civil rights division, denied pre-clearance on the ground that the judicial nominating process "prevents minority voters from having an equal opportunity to elect candidates of their choice."

Minority leaders were stunned. "At a time when people of color are in a position to in fact influence the selection of judges, . . . it is being suggested that we should not do that," Roberto Ramirez, Bronx Democratic chairman, told the New York Times.

The four sitting judges were no happier. Not knowing whether they would still be in office in January, they couldn't schedule cases for the future. They then heard a rumor that Justice had cut a secret deal with the minority judges to protect those judges' interests, no matter what the outcome of the case. Asked about the allegation, Judge Alexander Hunter, one of the minority judges who went to Washington, would only say: "We walked out of the meeting with Justice comfortable that we had worked out a resolution for the future." According to Feldman: "Justice nearly ignited a race war in Brooklyn. The judges were tearing at each other."

What did Justice want from New York? Although under its own guidelines the department is not supposed to discuss alternative election systems with a locality seeking pre-clearance, that's not how it works in practice, according to officials from many states. Says ex-attorney general Koppell: "They wanted to discuss a global arrangement involving the entire selection method."

Justice's desire to broker a deal would have violated the New York Constitution, which requires two successive legislatures to pass on changes in the judicial selection system. Justice nevertheless was ready to create an alternative judicial selection system in the back room. "I felt this was way beyond their jurisdiction, and there was no way I could do that on behalf of the state," Koppell recalls.

Although Koppell never let the discussion get far enough to know for sure, one can speculate on Justice's agenda. In other jurisdictions, Justice and civil rights groups have been pressing for single-member judicial districts. Traditionally, judges are elected on an at-large basis: if eight judges sit in a county, the entire county votes on all eight. In a single-member system, each judge would run in a district one-eighth the size of the county but preserve jurisdiction county-wide. Because of the greater possibility of excluding white voters, some small single-member districts would be almost certain to nominate and elect minority judges.

Outside the civil rights lobby, every informed observer decries single-member districts as compromising judicial independence, wholly apart from any racial question. As election time approaches, if a suit involves one party who is a constituent and one who is not, "you will be cognizant of who will vote for you," says Judge Jules Spodek.

The principle of racial gerrymandering for judges sends a dangerous message: that only members of the same race can judge each other fairly-that white judges cannot adjudicate any criminal cases properly because they do not understand the problems that lead minorities to crime. In an impassioned dissent to a voting rights case from Georgia, federal District Judge Dudley H. Bowen, a Carter appointee, argued forcefully against single-member districts: "Any suggestion of racial gerrymandering for judges is anathematic to all Anglo-American tenets of judicial independence and impartiality. Every Negro and every Caucasian is entitled to the same fair justice from a superior court judge, regardless of race."

After Justice denied pre-clearance in the New York case, the most pressing question was not what alternative judicial system to erect, however, but how to get rid of two of the 12 newly elected judges before January 1, When they were to be seated. Attorney General Janet Reno proposed. drawing lots, a suggestion that drew derision and disbelief. Said Bronx Democratic chairman Roberto Ramirez: "For the Justice Department to suggest that we should be selecting judges by pulling straws out says to me that the system has gone haywire."

Even from Justice's perspective, the lottery suggestion had a fatal flaw: it didn't safeguard the four minority seats. It was quietly retired. With no resolution in sight, New York went back to court on December 16, urgently seeking judicial pre-clearance before the deadline for seating the judges. Virtually all the city's bar and judicial associations had leaped into the negotiations; the state's attorneys were spending half their days on the phone trying to develop a contingency plan should the court fail to resolve the case before the January 1 deadline.

It was in court that the full absurdity of the situation became clear. Justice's attack on New York was based on a complete misreading of the law.

Justice had denied pre-clearance because New York's judicial nominating process, in its view, discriminated against minorities. Therefore, any addition to the courts that leaves the underlying selection system intact, it argued, is also discriminatory and cannot be pre-cleared.

This reading of section five of the Voting Rights Act represents—no other phrase will do—an abuse of power. U.S. Supreme Court precedent requires the department to confine its section five inquiry to the question of whether the proposed voting change has a "retrogressive" effect on minority voting strength-whether the change puts minorities in a weaker electoral position than before. If the change merely preserves the electoral status quo, the department must approve it, no matter the merits of the underlying electoral system.

In New York's case, Justice admitted that the addition of judges had no retrogressive effect on minority voting rights. In fact, the new posts clearly increased minority power by opening up new opportunities for minority judges. Every minority legislator and every minority caucus since 1982 has supported the addition of judgeships for that reason.

Under Supreme Court rulings, once Justice concluded that the addition of judges had no retrogressive effect, it should have promptly closed the case. But for the past 20 years, Justice has been denying pre-clearance for electoral "changes" that have no retrogressive effect, if it deems the underlying system discriminatory or thinks that an alternative system would put minorities in a better position. The only authority it claims for this position is an ambiguous sentence in a footnote of a Senate committee report on the 1982 amendments to the act and a 1983 dissent by Justice Thurgood Marshall.

Justice's expanded interpretation of its pre-clearance power gives it enormous leverage. By denying or threatening to deny pre-clearance, the department can demand changes in governance that it otherwise lacks the authority to require. Indefensible section five denials lie behind all of the more outrageous racially gerrymandered legislative districts in recent years. In the 1993 case of Shaw v. Reno, for example, the Supreme Court decried a 160-mile serpentine district in North Carolina, often no wider than the highway it tracked, as bearing an "uncomfortable resemblance to political apartheid." The district was the result of Justice's refusal to pre-clear the state's plan for a single, different district containing a majority of black voters. The state's plan was not retrogressive, but Justice demanded a second black district to maximize minority voting strength. Rather than going to court to contest the denial, the state created the 160-milelong monstrosity along with another majority-black district.

Likewise, the Louisiana Legislature carved a huge "Z" across the state after Justice refused to pre-clear its plan for only one black district. Again, the state's plan was valid under the Voting Rights Act. This time the department even provided the blueprint for the second, so-called "Zorro," district. In 1993 a federal court in Louisiana sharply rebuked the department for its tactics: "What was the authority for the [department's] insistence [on a second black district]? The answer presents itself: none.... [The department] arrogated the power to use Section 5 preclearance as a sword to implement forcibly its own redistricting policies, rather than as a shield to prevent lamentable historical abuses."

The policies Justice seeks to impose violate the most important limiting principle in the Voting Rights Act itself. The act expressly rejects a right of minorities to be "elected in numbers equal to their proportion in the population." Nevertheless, all of Justice's maneuvers under section five have had proportional representation as their goal.

To buttress its denial of pre-clearance in the New York case, Justice unfolded a bizarre argument in court regarding the state's purpose in adding the new judges. Section five prohibits electoral changes that have either the effect or the purpose of diminishing minority voting rights. Justice claimed that the legislative purpose of adding the new judges was to discriminate against minorities. Its reasoning was as follows: The New York Legislature knew or should have known that the judicial nominating system was biased against minorities. When the Legislature added judgeships, it deliberately chose not to change the nominating system to a non-biased alternative. Its purpose in adding judgeships, therefore, was to diminish minority voting rights further.

New York, in its defense, produced numerous affidavits, many from minority legislators, stating that the only purpose behind the additional judgeships was easing the crisis in the city's court system. No one thought about race or about altering the selection system.

Justice's argument is a sleight-of-hand strategy for ascribing racial intent when none exists. Its implications are enormous: Justice can tar local governments with intentional racism if they do not take a course of action that in Justice's view would improve minorities' political power.

The argument also rests on a militant disregard for how government works. "When you add ten judges, you decide how to elect them," says John Tanner, former acting chief of the voting rights section of the civil rights division. In fact, you don't. If an existing selection system is in place, you use it automatically, absent strong reasons not to. To put the onus on government to revisit first principles every time it makes a decision would produce legislative paralysis.

Though the D.C. District Court usually sides with the Justice Department in voting rights cases, this time it refused to go along. On December 22, 1994, the court ruled in favor of New York, delivering a resounding defeat to the Justice Department. Section five, said the court, is limited to an inquiry into the retrogressive effect of a proposed change; the merits of the underlying system are irrelevant. Moreover, the argument that legislators were or should have been aware of discriminatory effect, the court said, does not give rise to an inference of discriminatory purpose. "The [U.S.] has failed to identify a single fact which would suggest that the decision to create additional judgeships was motivated by a discriminatory purpose," wrote the court. The court refused as well to obligate the state to revisit its judicial selection system every time it added judges: "The Supreme Court has recognized that a state has a legitimate interest in maintaining the continuity of its existing electoral system."

You would think that so unambiguous a defeat would have ended the matter. But Justice was undaunted. Said John Tanner of the voting rights section after the District Court ruling: "We continue to feel that [the addition of] judges was done for a discriminatory purpose. Both the choice and the method of election were motivated by race." And so the division immediately filed a motion for reconsideration, which it lost on March 16,1995.

A month later the department appealed the case to the Supreme Court—which has never supported any standard for section five other than retrogression. Sensibly, on June 5, Solicitor General Drew Days III instructed the department to withdraw its appeal. "There was no disagreement as to whether our legal position was correct," says Richard Jerome of the voting rights section. "But the solicitor general decided that this was not the best case [factually] to present the issues"—an understatement if ever there was one.

Koppell estimates that the costs of defending against Justice's assault have been in the "thousands of thousands." Taxpayers have paid both sides' costs-money that could have been spent on judges' salaries, increased jail space, and more police.

To the Justice Department, the New York battle was just a skirmish in a broader war for racial proportionality on the bench. Nearly identical cases from Texas and Arizona await decision from the D.C. District Court; either of those cases, says Jerome, could end up in the U.S. Supreme Court. Justice is also engineering minority "representation" on courts in Alabama and Monterey, California.

As for future judicial pre-clearance cases, according to Jerome, the department will pursue the very theories about the Voting Rights Act that the court rejected in the New York dispute. "We will continue to find discriminatory purpose if the state was aware of the discriminatory nature of its election system and rejected alternatives to that system."

Justice's discriminatory purpose theory is reason alone to close down the department's voting rights section—or, ideally, the whole civil rights division. Only a set of attorneys possessed by blind fanaticism and indifferent to the reality of urban court systems could propound the argument that governments today authorize new judgeships in order to diminish minority voting rights. To vest power over the most fundamental workings of government in the architects of such a theory is a profound mistake.

It is time, too, to take a hard look at what the Voting Rights Act has become. Like many laws from the civil rights revolution—from Brown v. Board of Education to the Civil Rights Act of 1964—the act was born out of a noble purpose and met an urgent need. Yet it was subsequently twisted almost beyond recognition. Congress did not intend to impose racial quotas on the courts or force states to run to Washington for approval every time they add a new judge. Now that the country is openly questioning racial quotas in employment and education, it should not ignore the most consequential quotas of all: those in the courts and legislatures.

 

 

 
Routinely adding new judges, New York met a monster: a crusading Justice Department determined to prove that the city’s minority-controlled judicial selection process discriminated against minorities.
City Journal Summer 1995.
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