The North Carolina Bar Association has been floating a plan (apparently codified in SB 458) that would no longer allow North Carolinians to vote for appellate court judges.
As the Winston-Salem Journal explains, the legislature may move in September to change the judicial elections process.
The common complaint from opponents of the current system is that the judicial election process is too politicized. For a second, let’s assume that’s true. The model created under SB 458 would make things even more politicized.
Instead of voters deciding on judges, a special commission made up of, in large part, unelected and unaccountable representatives from special interest groups (mostly liberal) would provide two nominees for the Governor. The Governor would then be required to appoint a candidate from the two nominees. I wrote in more detail about this model in an April Rights & Regulation newsletter.
It should be noted that this model specifically details the special interest groups that get to participate in the process. The judicial election process changes from being open (i.e. transparent) to the back-door dealing that has stained North Carolina politics.
I do want to address whether the judicial election process is too political. A lot is made of the fact that contributors to judicial races are lawyers. As the Winston-Salem Journal argues, “That money [money in appellate court races] tends to come in the form of contributions from lawyers and other interests connected to the courts. Little comes from the general public.”
The suggestion being made is that the judiciary isn’t independent as a result of this money. I have yet to see any documented evidence of judicial conflicts in North Carolina that altered court opinions.
Contribution limits (which are excessively low for judges and lower than for other offices) already limit the amount of influence that any party can have on judges. Further, there are requirements that judges recuse themselves if there are conflicts of interest in cases.
If there’s a concern that conflicts do exist undermining judicial independence, which I haven’t heard about, and there’s a belief that judges aren’t properly recusing themselves, then judicial standards need to be examined, not how we elect judges.
If we did get rid of elections, the special interest model being pushed is the last place we’d want to go. If judicial appointments are the goal, then we should just use a straightforward approach where the Governor nominates judges with confirmation by the Senate. At least there’s some accountability.
However, this process is far more political than it may appear (just think of how judicial appointments work on the federal level). Special interest groups have become very sophisticated in working behind the scenes to influence who serves on the bench. The extreme and often bitter political fights over even Circuit Court judges show how political the process has become.
There’s also plenty of money being spent by the special interest groups to influence these outcomes on the federal level. Is this whole process less political than elections? I don’t think so.
If there’s a genuine concern over judicial independence, then there should be some evidence of why such a concern is warranted. There may be better approaches to create independence, such as longer but limited judicial terms. That’s just one idea.
These are significant issues that if they are to be addressed, need to be thought through in a public way, possibly in a study commission.
Reducing citizen involvement by taking away their right to vote for judges is the last thing North Carolina needs right now as the state tries to bring back more confidence in government.