GREENSBORO — As the U.S. Supreme Court has acknowledged, "[n]ot only do state court judges possess the power to 'make' common law, but they have the immense power to shape the States' constitutions as well" through their judicial decisions. Since 1868, North Carolinians have elected the members of their judiciary, making our judges directly accountable to the people for these "political" decisions.
The North Carolina Bar Association and other groups now seek to replace our system of elections with an appointment-based system, known in legal circles as the Missouri Plan. Under the NCBA's proposal, instead of having open and contested elections to select our judges, a judicial nominating commission would provide the governor with two nominees to fill vacancies that occur on the bench. The governor would be required to appoint one of the nominees, even if she disapproved of both of them. After several years on the bench, the appointed judge would run, uncontested, in a retention election.
But informed voters should wonder why North Carolina would adopt a constitutional amendment to radically alter a system that has worked well for more than 140 years. There has been no crisis of confidence in the North Carolina judiciary. In fact, a recent NCBA survey of North Carolina lawyers found widespread agreement that our elected judges are performing well. In contrast, last fall the Wall Street Journal reported that 26 states were considering legislation "to change or replace their judicial merit selection systems," such as the Missouri Plan.
There are good reasons why so many states are reconsidering whether they should use Missouri Plans or other "merit" selection systems to select their judges.
First, the NCBA proposal effectively removes the citizens from the judicial selection process in favor of an unelected and unaccountable committee. Viewing the general electorate as too unsophisticated and uninformed to participate directly in such an important decision, Missouri Plan advocates contend that a committee of unelected legal elites will take the "politics" out of judicial selection and provide North Carolina with a better judiciary.
Recent experience and empirical research demonstrate just the opposite - politically appointed committees produce a more politically polarized judiciary. Last month, Gov. Beverly Perdue appointed 18 individuals to her judicial nominating commission, which will advise her on judicial appointments. The committee is anything but nonpartisan, being dominated by prominent Democrats from across the state. A quick review of federal campaign donations of the newly appointed commission members shows that they donated almost exclusively to Democratic candidates.
And, as the research of Vanderbilt University law professor Brian Fitzpatrick demonstrates, this is typical of Missouri Plan states that, like North Carolina, reserve a majority of committee seats for special-interest groups. For example, in Missouri, which first implemented this form of merit selection, 87 percent of the judicial nominees who made campaign contributions since 1995 made them to Democrats.
Second, contrary to the claims of supporters, Missouri Plans are not necessary to ensure an independent and well-qualified judiciary. Although former Justice Sandra Day O'Connor and others contend that judicial elections make justice "for sale to the highest bidder," the empirical evidence, rather than the rhetoric, suggests just the opposite. In a 2008 Chicago Law study, Professors Stephen Choi, Mitu Gulati and Eric Posner found that although "[a]ppointed judges write more frequently-cited opinions than elected judges do, ... elected judges are more productive, while there seems to be no difference between their levels of independence."
Similarly, based on their independent research, political scientists Chris Bonneau and Melinda Gann Hall determined that "the available empirical evidence suggests ... [that] the best judges may, in fact, be the product of democratic politics."
Finally, although supporters of the NCBA proposal contend that retention elections preserve the right of North Carolinians to vote for their judges, the facts indicate that retention elections provide a de facto lifetime appointment for the nominating committee's nominees. According to one study, from 1980 through 2000 incumbents in retention elections were retained 98.2 percent of the time, while incumbents in contested partisan elections were defeated 23 percent of the time. As Professor Charles Geyh has noted, "[i[t is somewhat disingenuous to say that merit selection systems preserve the right to vote. Retention elections are designed to minimize the risk of non-retention, by stripping elections of features that might inspire voters to become interested enough to oust incumbents."
Although judges are not politicians, they are, as the legal realists demonstrated at the turn of the 20th century, political. Judicial elections provide North Carolinians with a proven way to hold the judiciary accountable for its political decisions without threatening the independence or integrity of the judiciary. The General Assembly, therefore, should retain our current system.
Scott W. Gaylord is an associate professor at the Elon University School of Law, where he teaches constitutional law, and is a member of the Federalist Society.