When I first saw this story by Ben Smith at The Politico–alleging that “most of Giuliani’s judicial appointments during his eight years as mayor of New York were hardly in the model of Chief Justice John Roberts or Samuel Alito”–I ignored it. Why? Because I remember similar, and incorrect, critiques being levied at Governor Romney. As David pointed out, for example, in the super-blue state from which Governor Romney hails, his hands were largely tied:
Second, every one of Governor Romney’s judicial nominees has to be approved by the “Governor’s Council“, a popularly-elected, eight member board that is dominated by Democrats (as is most of Massachusetts state government). Imagine a situation where the President of the United States had to run all of his judicial nominees by a Senate that contained 85% Democrats–most of them of the radical sort. That would change the picture a bit, wouldn’t it? I think the best way to think of Governor Romney’s track record in nominating judges is that he did the best that he could have done.
So it seemed to me that Mayor Giuliani might be getting criticism that’s just as unfair. However, Smith has since come out with a follow-up that leads me to believe Massachusetts is (this is quite a distinction) even more left-wing than New York City–and that Mayor Giuliani might deserve some heat on this issue. Here is how it begins:
Giuliani surrogate Bill Simon was at CPAC today offering a rebuttal of my story on Rudy’s judges that, while it has some truth to its general outlines, doesn’t really hold up.
Captain’s Quarters has a version of his spin:
“Simon called [the article] misleading. The mayor does not have a free hand in judicial appointments in New York City. An independent panel gives the mayor a choice of three candidates for each open seat, and the mayor has to select from those three. Rudy did not choose the candidates; he had to select one of three locked-in choices.”
Meanwhile, Giuliani backer Ted Olson told Hugh Hewitt that Rudy’s “discretion was quite limited.”
What Simon and Olson are referring to is the Mayor’s Advisory Committee on the Judiciary, the locus of a tradition of “merit selection” put in place by Ed Koch in 1978, a nice outline of which can be found on pages four and five of this document (.pdf). The system exists at the Mayor’s whim, and can be altered at his whim, as it was by Giuliani.
Okay, that got my attention. Here is the rest:
Most broadly, the system isn’t in the City Charter. It exists under executive order, which the mayor can revoke or alter at any time. Giuliani altered the prior executive order, shrinking the panel to 19 members.
As for the panel’s “independence,” it is, by recent tradition, quite independent. By design however, it’s totally dependent on the Mayor. He appoints its chairman and 8 other members directly. He appoints the other 10 on the recommendation of law school deans and state appellate judges, a recommendation to which he is not bound.
Under Koch’s model, the panel recommended three judges for each open seat; the Mayor was required to pick one. The Mayor also automatically reappointed any sitting judge approved by the panel for reappointment.
Giuliani broke with both of these traditions, permitting himself to reject all three, and occasionally refusing to reappoint a sitting judge. This was a huge deal in late 1995, and prompted a decisive break between Koch and Giuliani. The fight, though, was not about ideology; Giuliani cast it in terms of the “limited” intellect of one judge, and of ties to corrupt county political machines.
Obviously, Giuliani could have altered the system further had he wished, or ditched it entirely. (Bloomberg restored the Koch system in 2002.)
Another reason the notion that Rudy had his hands ties doesn’t make sense: In other cases, Giuliani saw fit to tangle with panels on which he had less total statuatory control — the Board of Education and the board of the City University of New York come to mind. In the case of the judiciary, he largely abided by the tradition.
And finally, as a matter of practice, the commission is basically controlled by its chairman and its executive director. Under Giuliani, the chairman was Paul Curran, a former Republican U.S. Attorney; its executive director was Paul Siegfried, a Democrat who had served in that position under other mayors and whose focus was qualifications, not ideology or judicial philosophy. Again, Giuliani could have replaced Siegfried, as Bloomberg did. He chose not to.
The bottom line is that Giuliani chose not to turn the courts, as he had other areas of city government, into a battle ground of ideology or reform. He appointed candidates in his own image — law and order former prosecutors with liberal social views. He allowed the panel’s chairman and executive director to do most of the work. He wasn’t looking for a revolution in judicial philosophy, and didn’t get one.
Hmm. Well, decide for yourself!