John Locke Update / Research Brief

Is the North Carolina Courts System Broken?

posted on in Law & Regulation, Legal Update
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Some members of the General Assembly seem to think so.

Twice in December, and twice again this month, the Senate Select Committee on Judicial Reform and Redistricting has met to discuss, not just various judicial redistricting proposals, but also the possibility of replacing the current system of partisan judicial elections with something different. Among the alternative systems currently under consideration are:

  1. A “legislature appoints” system in which the General Assembly appoints judges from a list of self-nominated candidates;
  2. A “federal-style” system in which the governor nominates candidates who must then be confirmed by the Senate; and
  3. A “balanced” system in which a Merit Selection Commission appointed by the chief justice sends a list of “qualified” judicial candidates to the General Assembly; the General Assembly narrows the field to a short list and forwards it to the governor; the governor appoints a judge from the shortlist for a provisional term; and the appointed judge is subject to a retention election in the second general election following appointment.

The third option is a clever attempt to blend elements of the first two options, both of which have been around since the early days of the Republic, with two more modern approaches: merit selection and retention elections.

Merit selection and retention elections have been strongly advocated by progressives and “good government” reformers in recent years, and they have been adopted in many states. However, merit selection and retention elections have their critics as well, one of whom is Scott Gaylord, a professor of law at Elon University. In a 2012 article called, “Judicial Independence Revisited: Judicial Elections and Missouri Plan Challenges,” Prof. Gaylord points out some of the downsides of merit selection:

[B]ecause these committee members are unaccountable to the public or anyone else, they are free to nominate individuals who reflect their personal, political, and legal viewpoints. That is, instead of having the majority determine who should serve in … the judiciary, unelected legal and political elites will populate the state judiciary with judges who reflect the committee’s view of who should serve as a judge.

And of retention elections:

[R]etention elections aggravate the purported problems with contested elections because judges still might consider the impact of their decisions on the reelection prospects, but when the election occurs, there is no opposition candidate to highlight important issues or decisions by the incumbent. And because retention elections typically are non-partisan, voters cannot even use party affiliation as a stand-in to determine how a judge might view the judicial process.

Just as merit selection and retention elections have their critics, partisan judicial elections have their defenders, one of whom is Chris Bonneau, a professor of political science at the University of Pittsburgh. In a recently published paper called, “The Case for Partisan Judicial Elections,” Prof. Bonneau argues that:

Partisan judicial elections are controversial, but their benefits outweigh their problems. They are effective mechanisms for providing voters with relevant information about judicial candidates, meaningful choice in elections, and transparency in the selection process. Indeed, on all of these criteria, they are superior to other forms of elections (nonpartisan and retention) and appointment schemes. And partisan elections accomplish all this without suffering any decrease in the legitimacy of the courts, at least among those with knowledge of the courts.

This is not to say that partisan elections are perfect; they are not. And it is perfectly reasonable for states to decide they do not want to choose judges in this way. However, any discussion of judicial election should be based on empirical evidence and should contain a careful weighing of the strengths and weaknesses of each of the alternatives. There is no perfect method of selection. But partisan elections have several advantages over the alternatives, and the positive attributes of these elections should have a prominent place in any debate over judicial selection in the states.

The opportunity to hear from scholars like Gaylord and Bonneau—and from other scholars who have other points of view—is an invaluable part of the deliberative process, and I’m happy to report that the Senate’s Judicial Reform and Redistricting Committee has been availing itself of that opportunity. Professor Gaylord made a presentation at the committee’s December 13th meeting, and committee members (and other legislators) who are interested will have a chance to hear from Professor Bonneau when he is in Raleigh on February 15th for a panel discussion at the State Bar Headquarters sponsored by the Federalist Society.

Making major changes to North Carolina’s system for selecting judges should not be undertaken lightly, especially if those changes would require a constitutional amendment. (The NC Constitution states, “Justices of the Supreme Court and Judges of the Court of Appeals shall be elected by the qualified voters of the State.”) Before we attempt to fix the existing system, we need to make sure it really is broken!

Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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