N.C. Needs New Way of Picking Judges
A fair and impartial justice system is essential to North Carolina’s wellbeing. Courts ensure our rights and freedoms, promote equal opportunity, and maintain stability and economic prosperity under the rule of law.
At the foundation of our justice system are judges who decide cases based on the facts and the law, without bowing to popular or political pressure. Today, that foundation is under siege.
The North Carolina Constitution requires that judges be chosen in “elections by the qualified voters of the state.” In an ideal world, this provision would provide North Carolina with an excellent bench. Informed voters would choose our judges from an unlimited candidate pool. Well briefed on the judiciary’s core mission and the leading characteristics of good judges, no doubt they would do so ably.
But in 21st century North Carolina, the reality is far different.
Recent experience in other states, most notably Iowa and Wisconsin, reflects the unwelcome influence of well-funded groups bent on electing judges who promise to advance (or oppose) the groups’ positions on the hot social issues of the day and removing judges whose decisions do not accord with their positions.
It’s well-known that the courts are the least-understood branch of our government. Except for the occasional sensational case that grabs media attention, North Carolina’s nearly 10 million citizens have no meaningful way of evaluating judges’ vital work. That work proceeds one case at a time, across the vast body of law of our complex society.
Independence, integrity, reverence for the rule of law, courtesy and patience, dignity, open-mindedness, impartiality, thorough scholarship, decisiveness, and not least an understanding heart — these are the traits our best judges possess. But it’s virtually impossible for voters to discern whether judicial candidates have them.
When you couple proven barriers to an informed electorate with some politicians’ irresistible tendency to regard judgeships as just one more form of spoil, it’s no wonder debates over judicial selection focus so much on politics and so little on quality and sound judicial values. As Charlotte Observer columnist Jack Betts recently said, “Not everyone wants an independent judiciary” — no matter how essential to our lives and liberties.
For more than four decades, the North Carolina Bar Association has fought to reform North Carolina’s approach to judicial selection, all with the goal of diminishing the role of politics and encouraging qualified candidates to offer themselves for judicial service.
The subject is so important that talented people from various walks of professional life, wearing different political stripes, have devoted thousands of hours of discussion and debate to it. These diverse voices are united in the conviction that our state must find a better way to attract qualified judges and retain them on the bench.
The Bar Association is now offering just such a better way: Senate Bill 458, introduced last month by Sens. Fletcher Hartsell (R-Cabarrus) and Dan Clodfelter (D-Mecklenburg).
Commission Would Nominate
The bill would create a statewide Judicial Nominating Commission — politically balanced, with an equal number of lawyers and non-lawyer citizens — to screen candidates for the bench. When a sitting judge retires or dies in office, the governor would fill the vacancy with one of two nominees recommended by the commission.
The nominee not chosen could run against the governor’s choice, and voters would have the final say in an election between the commission’s two nominees. After one contested election, the successful candidate would face a retention election with no opponent every eight years. If the commission’s nominee not chosen by the governor decided not to run, the governor’s choice would stand for a retention election.
This approach would balance judicial independence with public accountability much better than the current system, in which our best judges must live with the prospect of being unseated by an unqualified opponent.
And it would encourage highly promising candidates, who under the present system simply won’t risk job security and livelihood, to serve the public on the bench.
The Bar Association proposal reaches for a careful balance. It respects polling data indicating that the public does not want to give up electing judges, but gives greater assurance of qualified candidates with screening by a nonpartisan nominating committee.
Candidates would be thoroughly vetted based on professional qualifications and experience, demonstrated legal expertise, and possession of the core characteristics of a good judge.
At the same time, the proposal would preserve the public’s power to vote on judges and remove them from office based on job performance.
Present System Is Broken
One might wonder why the Bar Association bothers, given our repeated failures to persuade the General Assembly to change judicial selection, irrespective of the party in power. Why not yield to the popular argument that the voting public knows just as much about the judges they select as they know about county commissioners, city council members and legislators, and that that much is plenty?
Even if this contention held water — and we know from polls and personal experience that it does not — is this system the best a proud state can devise for its judiciary? Will we continue to risk the quality of our judiciary for the sake of a false democracy? The answer has to be no.
Executive and legislative branch officials make crucial decisions, to be sure, but they never impose prison sentences, award custody of a child, divide a marital estate, terminate parental rights, or act as final arbiters of constitutional rights.
These choices profoundly affect the lives and fortunes of real people. And all of them are made by judges alone.
The core characteristics of good judges weren’t invented by lawyers. They are qualities every North Carolinian who enters a courtroom should be able to take for granted.
The Bar Association proposal will improve the chances that when our people take some of the most important problems in their lives to court, they will be resolved by good and wise judges.
Our citizens deserve nothing less.
Former N.C. Supreme Court Chief Justice James G. Exum Jr. and N.C. Bar Association Past President John R. Wester serve as co-chairs of the NCBA’s Committee for Judicial Independence.
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