Judicial Justice: Much Depends on How We Pick Judges
by Martin H. Brinkley
N.C. Bar Association
Judges play a unique and essential role in our free society. Day in and day out, they make the hard decisions that keep North Carolina a safe, stable place: sentencing criminals, deciding custody of children, dividing estates, terminating parental rights, and enforcing agreements that enable businesses to succeed and our state to prosper.
Every citizen has a right, in the words of John Adams, to judges as "free, impartial, and independent as the lot of humanity will admit."
What kind of person is best suited to serve as a judge? That's the question the Governor's Judicial Nominating Commission hopes our citizens will answer, beginning this week. The -commission has held two public -hearings and is planning a third in Chapel Hill to listen to North Carolinians as they offer their views. These hearings are historic opportunities for citizens to make their voices heard on the qualities a good judge ought to have.
Although North Carolina judges are elected by the people, few arrive at the bench that way. At least 80 percent of judges are initially appointed by the governor when a sitting judge retires or resigns. The governor has unfettered discretion in making judicial appointments, subject only to the state constitution's requirement that judges must be licensed lawyers. For decades, governors have exercised this sweeping power quietly, advised by staff and close confidants.
The Judicial Nominating Commission created by Gov. Beverly Perdue last year is a major step forward in making the judicial appointment process transparent to our citizens. When former Chief Justice I. Beverly Lake Jr. administered the oath to them in January, these 18 volunteer citizens undertook to nominate candidates for vacancies on our state Supreme Court, Court of Appeals, and Superior Court.
The governor's charge requires the commission to evaluate applicants to fill any vacancy on these courts and, within six weeks, forward three names to the governor. The governor is bound to choose one of the three nominees the commission selects.
During their first meeting, commission members spoke compellingly about the essential role of the public in their work. The governor charged the commission with holding public hearings "to receive citizen comments and advice regarding the qualities citizens believe are characteristic of an able judiciary." This invitation empowers the people, whom the justice system was intended to serve, giving them a meaningful voice in the composition of the bench.
It makes the public a participant in the commission's scrutiny of lawyers who want to be judges. It encourages the most highly qualified lawyers to offer themselves for judicial service, while discouraging the less qualified. I hope North Carolinians will take full advantage of this chance to be heard on a matter critical to our democracy.
Lawyers, who are constantly engaged with our system of justice, bring an important perspective to judicial appointments. We understand from experience Alexander Hamilton's statement that "a steady, upright, and impartial administration of the laws" is essential, because "no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be the gainer today." Most people would agree that when a hospital is hiring a new head surgeon, a few surgeons ought to be on the selection team.
The composition of the Judicial Nominating Commission - half lawyers, half civic leaders from other professions - strikes a good balance between lawyers' experience and the broader interests of the public. The members of the commission are outstanding citizens from a range of backgrounds. They include a sheriff, a university chancellor, a town manager and the retired executive director of one of North Carolina's leading charitable foundations. Their work serves the best interests of all North Carolinians and deserves our support.
The debate over how to pick judges is as old as our country. Citizens, legislators, lawyers, scholars and judges themselves disagree - and probably always will - about who should reach the bench and how. But the fundamental question of what judges are supposed to do is unaltered and unalterable. More than 2,500 years ago, Thucydides wrote: "Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must."
North Carolina's courts exercise an equalizing power, ensuring that the strong do not do what they can merely by virtue of their strength, and the weak do not suffer what they must merely by virtue of their weakness. What is done and what is suffered are determined by principles we know as the law.
Government keeps its promises, or does not keep them, in the courts. Retired U.S. Supreme Court Justice Sandra Day O'Connor put it this way: "The founders realized there has to be someplace where being right is more important than being popular or powerful and where fairness trumps strength. And, in our country, that place is supposed to be the courtroom."
The North Carolina Bar Association has long advocated for the highest protection of our judges' independence and for improved systems of judicial selection. We hope that the Judicial Nominating Commission will make long strides in raising the public's understanding of the Judicial Branch and the critical role it plays in our lives.
As the work of the commission proceeds, we believe confidence will grow in those chosen to bear the heavy responsibility that service as a judge demands.
Martin H. Brinkley is president of the North Carolina Bar Association. The third and last hearing of the Governor's Judicial Nominating Commission will be held at UNC-Chapel Hill's Center for School Leadership on March 22 at 2 p.m.
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