by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
On Monday, May 7, the John Locke Foundation and Western Carolina University’s Center for the Study of Free Enterprise will cohost an event that should be of interest to anyone concerned about the administration of justice in North Carolina. It’s a special Shaftesbury presentation at Campbell Law School in Raleigh from noon to 1:30 p.m. at which a panel of experts will address an important and timely question:
For well over a century, the citizens of North Carolina chose their judges through conventional, partisan elections, and, throughout most of that period, Democrats dominated every part of North Carolina’s government, including the judiciary. In the late 1990s, however, Republican judicial candidates began to be elected in significant numbers. In response, between 1996 and 2002, the N.C. General Assembly, which was still controlled by Democrats, adopted a series of measures that eliminated party labels in judicial elections and introduced public funding for judicial candidates. Unsurprisingly, when Republicans took control of the General Assembly in 2010, they reversed course and returned to the traditional system. Public funding was eliminated in 2013, and in a series of measures adopted between 2015 and 2017, party labels were restored to races for the Court of Appeals, Supreme Court races, and finally to races for the Superior and District courts.
The Republicans’ decision to return to the traditional system of partisan judicial elections generated a certain amount of controversy, particularly among Democrats. However, more recent Republican legislative initiatives appear to have thrown the whole question of judicial selection into a state of turmoil. In October 2017, the N.C. House approved a bill to create new judicial districts throughout the state, and, in that same month, a leading member of the N.C. Senate filed a bill to convert all judicial terms to two years. Both bills remain on the table for the coming short session.
Adding to the turmoil, in December the Senate began holding a series of hearings at which the entire approach to judicial selection in North Carolina was reconsidered. The purpose of the hearings was to help the Senate’s Select Committee on Judicial Reform and Redistricting gather evidence and hear testimony pertaining to four possible judicial selection systems:
(1) the existing system of partisan elections;
(2) a system in which the General Assembly appoints judges from a list of self-nominated candidates;
(3) a system in which the governor nominates candidates who must then be confirmed by the Senate; and
(4) a system that, in addition to incorporating features of the first two alternatives, also makes use of both merit selection and retention elections.
Any of the last three alternatives would be a radical change from the system that has operated in North Carolina since 1868 and would, moreover, require the amendment of the N.C. Constitution, Article IV, Section 16 of which states, “Justices of the Supreme Court, Judges of the Court of Appeals, and regular Judges of the Superior Court shall be elected by the qualified voters.”
On Monday, the panel of experts assembled by the John Locke Foundation and Center for the Study of Free Enterprise will debate the relative merits of these and other judicial selection options in terms of the four things we want most from our judges: competence, independence, accountability, and legitimacy. The discussion will be moderated by Professor Edward J. Lopez, who’s the Director of the Center for the Study of Free Enterprise at Western Carolina University. The panelists will be Chris Bonneau, Associate Professor of Political Science at the University of Pittsburgh; Scott Gaylord, Professor of Law at Elon University; F. Andrew Hanssen, Professor of Economics at Clemson University; and Bryan McCannon, Assistant Professor of Economics at West Virginia University.