DURHAM -- Informed North Carolina voters who consider the present realities do not want to continue to choose our judges by the democratic process that our state adopted in the 19th century.
While we in North Carolina have experienced no disastrous judicial elections, voters in many other states have witnessed multi-million dollar defamatory campaigns for judicial offices. The chamber of commerce and other interest groups, or even parties in pending litigation, were winning contested judicial elections with money. Their states' judicial offices were seen to be for sale to the highest bidder, who was almost certain to be an interest group buying favorable judgments for its members.
Voters seeking to elect independent and fair-minded judges have been further impeded in recent times by decisions of the Supreme Court of the United States. That court has extended the constitutional right to freedom of expression in previously unimagined ways, invalidating some state laws that were enacted to protect the integrity of the election process. Money is speech? Corporations are citizens entitled to spend freely? To buy a judicial office for a lawyer whom they can expect to decide cases in their favor? And freely to defame rival candidates?
These rulings pose a problem for all elective offices, but are especially troublesome in campaigns for judicial office.
To prevent judicial corruption, North Carolina in the 21st century enacted laws protecting candidates and voters from the unwelcome impact of costly commercial advertising. The critical feature of our present system is public funding of campaigns for judicial office.
Our plan was copied in New Mexico, West Virginia and Wisconsin, and was under consideration in other states whose voters were accustomed to choosing their judges, but who shared our concern about corruption. Our North Carolina plan gives candidates who demonstrate a modest measure of voter support access to limited public money sufficient to fund a modest statewide campaign to inform voters about their qualifications. But recipients of public funds must promise not to spend vast additional sums to gain election. And our good law provided a deterrent for big spending by providing "matching funds" to those candidates who were being outspent by rival candidates who choose not to accept the limiting terms on which public funding was provided. This feature served to deter purchases of judicial offices.
Alas, our good system is now dead. The Supreme Court of the United States held in 2010 that "matching funds" violate the right to free expression of those spending vast sums to speak in support of their favored candidates. Thus, we have no choice but to change our ways.
Unless we want our judicial candidates to be compelled to raise vast campaign funds by selling their independence to judge cases on the law and the facts, we have to find a less costly way to get qualified candidates into office. That is an urgent motive of the present proposals for reform being advanced by the North Carolina Bar Association.
The Bar's proposal assigns an important role to voters to approve or disapprove appointments of judges nominated by our governor on the advice of a diverse and disinterested panel. Gov. Beverly Perdue has now taken the first step in creating a sensible system. She has established a diverse committee to advise her on prospective appointments. That group could be firmly established to play an important role in protecting our judiciary and our state's law from the corrupting effects of big money in judicial elections.
But additional reform will be needed to enable voters to elect judges without the corruption of expensive campaign funding. A return to partisan elections is not a sensible response to the problem of judicial power being put up for sale.
The Bar Association, with the support of many members of the North Carolina Advocates for Justice, is seeking support for a plan that would rely on confirmation and retention elections as the means by which our judges would be held politically accountable for their decisions.
This proposal is not simple and it is not ideal, but there is no ideal way to choose our judges, and the Bar's proposal is clearly better than any of the alternatives. Now that the governor had taken an important first step, our legislators need to give serious attention to the complex problem of judicial elections and to the Bar Association's proposal for addressing it.
Paul D. Carrington is a professor of law at Duke University and a member of the N.C. Bar Association Committee for Judicial Independence.
