Judicial selection

Back in the early 1920s, New York state's Legislature was concerned about the corrupting influence of judges having to raise money to run in state primaries.

So, since the U.S. Supreme Court says states can decide whether to use conventions or primaries to nominate candidates, New York scrapped its direct primaries for Supreme Court justices (trial judges, under New York's system). Instead, they established a system in which primary voters select delegates to a state convention, which then nominates candidates for those benches. (Other New York judges still run in primaries.)

In practice, those nominees frequently run unopposed. Critics say the conventions have become patronage-driven affairs in which allies of party leaders are rewarded with judgeships while everyone else is shut out.

(Wait, you mean a de facto judicial appointment process designed to insulate judges from the dirty business of raising campaign cash has evolved into a good-old-boy, back-room network? Is there a message here for Nevada?)

At any rate, critics of the New York process sued last year, leading a federal district judge and the 2nd U.S. Circuit Court of Appeals to strike down the process, saying candidates who are not the choice of party leaders are excluded from elections by an onerous process that violates their First Amendment rights.

On Wednesday, however, the U.S. Supreme Court unanimously restored New York's unique system of choosing trial judges.

"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," Justice Antonin Scalia wrote for the court.

"The Constitution does not prohibit legislatures from enacting stupid laws," added Justice John Paul Stevens, quoting the earlier words of former Justice Thurgood Marshall.

The state legislature is free to return to a primary system if it wishes, the court noted.

The high court is right about the need for parties to be left to their own devices in choosing nominees that best represent their philosophies. But even if the court was right on the question at hand, it may have been asked the wrong question.

Another and better question is how two and only two such private organizations won the right to place their candidates on the government-printed ballot essentially free of charge, while independents and third-party candidates are crippled by the requirement of raising tens or even hundreds of thousands of dollars to "petition" for this same right -- when they succeed at all.

Leave the Republicans and Democrats free to choose their candidates as they see fit, of course. But why should it be practically impossible for anyone else to win a spot on that ballot?