View in Your Browser

Is a Marriage Amendment a Form of Hate Speech?

Without getting into the pros and cons of a marriage amendment, the political debate surrounding the proposed marriage amendment is certainly interesting.

Having said that, it also has gotten extreme. House Democratic Leader, Rep. Joe Hackney recently argued, "This proposed constitutional amendment runs against the tide of history, and has become a form of hate speech."

Really? Are we really going there? Is the new tactic when you can’t form an argument to simply call support for a law a form of hate speech? If so, I better apologize to people that love more regulation and higher taxes.

The term "hate speech" already is a vague and malleable term used primarily by those on the left to chill speech they disagree with. Hackney appears to be taking the application of the term to a new level by applying it to supporters of laws that liberals oppose.

Ironically, using the "hate-speech" accusation is itself a form of name calling. Aren’t those who use the "hate speech" term against those who believe that marriage is between a man and a woman engaged in a form of "hate speech?"

We all can use vague terms to chill speech. For opponents of the marriage amendment, it probably would be wise to focus not on name-calling, but on substantive arguments (the same goes for proponents too).


No More Elections for Appellate Judges?

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 being characterized by the back-door dealing that has stained North Carolina politics.

I do want to address the question of whether or not 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 undermining judicial independence do exist, 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 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.

Click here for the Rights and Regulation Update archive