Should North Carolina elect or appoint judges?

March 22, 2010 

Appointing judges is better


You still [elect judges] in North Carolina, I'm sorry to say - very sorry to say. That's not a good way to go.

I've spoken now in a good many states that are considering change. I lived in Maryland for almost 20 years when I was appointed to the [Supreme] Court, and they are just now getting around to making all their judicial appointments merit selection, and I went to speak to some of the legislators this past week.

Nevada has a constitutional amendment on its ballot for next November to propose it for Nevada. I'll be speaking out there, I'm sure. And I've recently spoken in Michigan, Wisconsin and Minnesota about the same subject, because they could use a little push.

We are the only nation in the world that elects its judges. We are way out in left field on this.

When the framers of our Constitution got together in Philadelphia and figured out they wanted three branches of government, it was important to them that the third branch be the judicial branch.

They provided that federal judges would be selected and appointed by the president, with the advice and consent of the Senate. It's worked pretty well for the most part.

However, it was up to each state to decide how to select its judges. Every one of the original colonies, every one of the original states, had appointed judges. None of them elected judges.

I know you have some public funding of elections, and it's nonpartisan, but that doesn't do enough. So I hope that someday you'll think about something else in North Carolina.

Sandra Day O'Connor retired from the U.S. Supreme Court in 2006, after 25 years of service. She made these remarks March 8 at Elon University's School of Law.

Appoint, with retention elections


Unfortunately, there's no surefire way to pick judges. Every possible method is political, including the one Justice O'Connor backs and the one that elevated her.

Electing judges, as North Carolina does, certainly has its disadvantages. Most voters don't know much about judicial candidates, and we've elected some doozies.

Judicial campaigns have grown more costly, especially those for statewide appellate posts. North Carolina's optional public financing of them has helped rein in the unsavory sight of judges collecting contributions from lawyers and litigants.

But already, most of our judges first arrive at the bench via the governor's appointment - and governors are fully capable of hiring and promoting the dim, the foolish and the biased. Voters often only ratify an unwise choice.

Think about your least favorite federal judge. He or she was appointed for life in a partisan political process, with success not assured. "You don't think qualifications have anything to do with it, do you?" a federal judge once asked me.

I suspect that activist court rulings such as Roe v. Wade, which O'Connor later upheld, and Bush v. Gore, which she joined, do more to damage judicial prestige than any election does.

Given our options, the best one might be "merit selection," in which a panel of lawyers and lay people recommends highly qualified candidates for gubernatorial appointment.

The key to maintaining public support could be to put appointed judges through periodic retention elections without an opponent. That way citizens could dump lame and dirty judges. And judicial pay should rise, too, to lure top talent.

O'Connor says she's for it. Me, too. Oyez.

Matthew Eisley edits The N&O's North Raleigh News and Midtown Raleigh News.

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