Electing Judges by Party Would Be a Huge Mistake
Picture the following scenario:
A candidate for election is being interviewed by the executive committee of one of the political parties. Questions are being asked about most of the major issues of the day. The candidate, who would like to be elected, is careful to take positions that would be well-received by the interviewers.
Scenes like this have been accepted practice for years. Before a political party bestows its endorsement on a candidate, or offers to assist the candidate financially, it must be satisfied that the candidate will support the party’s position.
But what if the candidate is trying to be elected to a position as a judge, and in normal political fashion, the candidate fashions the responses to please the interviewers?
The scary prospect of a candidate for a judicial position being interviewed about his or her positions by a committee of a political party is not far-fetched if the legislature passes a law it is now considering.
House Bill 64, titled “An Act to Restore Elections to a Partisan Basis,” provides that the election of judges would be partisan, just like those for the governor, senators and lieutenant governor. The bill includes all judges, from chief justice of the North Carolina Supreme Court to local District Court judges.
For all of the 38 years I have practiced law in Moore County, I have opposed the idea that judges should be compelled to seek or keep their positions by subjecting themselves to popular election.
I concur wholeheartedly with the sentiment expressed by U.S. Supreme Court Justice Ginsburg’s sentiment expressed in the case of Republican Party of Minnesota v. White: “Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people’s elected representatives. Legislative and executive officials act on behalf of the voters who place them in office; judges represent the law. A judiciary capable of performing this function, owing fidelity to no person or party, is a longstanding Anglo-American tradition.”
House Bill 64 ignores this tradition and would force our judges to enter the partisan fray at a time when politics has become more contentious than ever.
The title of the bill gives the impression that its purpose is to simply restore partisanship to judicial elections. That impression is false.
Practically speaking, we’ve never had true partisan elections in North Carolina. As those of us in the legal profession know, the “good old days” of partisan judicial elections never were. Judges were, more often than not, appointed to their positions or were selected through the primary process. Very few positions were actually contested at general elections. It was a “kinder and gentler” time as far as judicial selection goes.
Those times are long gone. We live in an age of Twitter, blogs and Facebook, making everything an elected official does instantly known and scrutinized. Voters today demand instant response and accountability from their leaders.
In Wisconsin, union supporters who opposed recent changes in the collective bargaining laws are striving for recall elections. Twenty-four-hour cable news programs are constantly looking for stories to fill their time slots and increase ratings. Any English teacher will tell you that it is hard to have a good story that doesn’t have an element of conflict.
House Bill 64 would take judicial candidates, who are supposed to stay above the fray, and throw them right into it. Over the past 25 years, we have come from judicial elections that were often uncontested to 13 candidates vying for one seat on the Court of Appeals in the most recent election.
As elections become more contested, they become more expensive. Particularly in the statewide elections, judicial candidates must raise hundreds of thousands of dollars to get their names known to voters.
As detailed in the recent Supreme Court case of Caperton v. Massey Coal Co., Don Blankenship, CEO of Massey Coal Co., donated $1 million directly to West Virginia Supreme Court judicial candidate Brent Benjamin.
Blankenship then donated another $ 2.5 million to a political organization supporting Benjamin. We can only imagine how uncomfortable a litigant would feel having a case in front of a judge who had received thousands of dollars for his or her campaign from the other side.
Even the landscape of contributions has changed since North Carolina last experienced partisan elections. The Citizens United case has freed corporate and anonymous contributors from wise constraints on political donations.
Moore County is blessed with good judges, and so far we have been somewhat insulated from the rough-and-tumble judicial elections common in other states.
But I fear that will change. Just this week I spoke with an excellent young judge in Carthage who said he has decided not to seek re-election when his current term is up. He said that raising money and worrying about politics were not for him.
Too Much Pressure
There is a Catch-22 for judicial candidates when it comes to how large the geographic district is in which they compete. The larger the district, the more money must be raised to reach the voters. The smaller the district, the more vulnerable a judge is to lose his or her seat due to a single unpopular decision in a high-profile case, even if the decision is absolutely correct under the law.
I have been involved in a number of capital trials, and all of them were very difficult and emotionally charged for everyone involved. In my opinion, it is simply unfair to expect a judge to preside over a case in which feelings are understandably high and then subject him to the will of the voters to keep his job.
Indeed, questions are beginning to be raised about whether an elected judge can even preside over a highly publicized case. As Justice Scalia said in the White case, “So if, as Justice Ginsburg claims, it violates due process for a judge to sit on a case in which ruling one way or another increases his prospects for re-election, then — quite simply — the practice of electing judges is itself a violation of due process.”
Another concern is that the nature of the cases being decided by judges today is different in many ways from what was presented in the old days. There is almost no social policy issue that doesn’t end up in front of a judge. Extraordinarily difficult questions such as abortion, gay marriage, gun control and so forth eventually work their way to the courtroom.
The Lawyer’s Dilemma
Not only is the current polarized climate difficult for judges, it is hard on lawyers who are obligated to zealously represent their clients. For example, before every death penalty trial, does the defense lawyer have the duty to research the campaign contributions to the presiding judge?
What do we do if we find out the prosecutor, or family members of the person who was killed, made substantial contributions to the campaign fund of the judge who will conduct the trial? Do we have an obligation to reveal that information to our clients and ask that a different judge be assigned to the case? I think so.
In my opinion, our society is more politically polarized than ever before. I am opposed to all forms of popular elections as a way of selecting judges. As Justice Ginsburg wrote in the White case, I believe partisan elections are “incompatible with the judge’s role.”
House Bill 64 does not “restore” our system to what we had at an earlier time. Rather, it would throw judicial candidates into a new and uncharted pressure-cooker of partisan politics. I urge the General Assembly to rise above partisanship and defeat House Bill 64.
Attorney and Moore County Board of Education member Bruce Cunning-ham lives and practices in Southern Pines.
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