When you walk into the voting booth and start filling in the oval dots, bets are, unless you are a lawyer or have been a litigant in a court case, you will have no idea which candidate would make the best judge.
You may vote for the best sounding name, or whoever currently holds the seat. Political endorsements may sway you, or word of mouth, but for most voters it’s blindly pinning the tail on the donkey. Unfortunately, voters don’t sit in courtrooms and judge judges.
Since the beginning of our nation, one of the most persistent, contentious debates is whether judges should be elected or appointed. The distinctly American way is to elect judges, whereas most other countries and our federal judiciary appoint them. Each method has its pros and cons.
Selecting judges is a thorny issue, but critically important. Perhaps more than any other elected official, judges make life-altering decisions in the daily lives of people: custody of children; dissolution of marriages; property and money disputes; criminal and traffic cases; civil rights claims; immigration issues and constitutional interpretations.
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It matters who sits on the bench and makes these decisions.
Those who think judges should be elected reason that in a democracy judges must be accountable to the public. Just as legislators, city council members, county commissioners and school board members are elected, judges should also answer to the voters. They are expected to put out yard signs and ask donors for money.
However, the role of a lawmaker/policymaker is very different from a judge’s responsibilities. The former makes policy and law and the other upholds the law. To get elected a politician calculates popular appeal and makes campaign promises to lower taxes, strengthen or loosen gun rights. They stake themselves out and tell you exactly how they will vote on contentious issues.
The judges’ first priority is the law, not popular opinion. Judges do not make political pronouncements such as “I will lock up every one charged with drunk driving” or “I’ll never enforce the death penalty.” They can talk about temperament and demeanor, but no one running for judicial office can promise much more than to be fair and impartial. Every case is unique as to its facts and applicable law.
As Chief Justice John Roberts stated: “Politicians are expected to be appropriately responsive to the preferences of supporters. A judge instead must observe the utmost fairness, striving to be perfectly and completely independent.”
The elective system is fraught with problems as judicial races have become more partisan, polarized and expensive. It is a challenge for judicial candidates to remain totally unswayed and have amnesia about who supported them when a case comes before them with a lawyer who was a contributor. When judges have one eye on re-elction, the appearance of favoritism strikes against judicial impartiality.
In addition to re-election pressures, North Carolina legislators continually tinker with judicial election laws. Races change from partisan to nonpartisan, back to partisan identifications. Public financing that once limited the amount a judicial candidate raised and spent was recently repealed, causing judges to go on the hunt for campaign money. And just this year the state legislature declared a Supreme Court seat to be a retention election until it was overturned as unconstitutional.
However Republican legislators did manage to switch the alphabetical order of Court of Appeals candidates to give identified Republican candidates an advantage having their names listed first on the ballot.
This year, North Carolina voters will decide one seat on the North Carolina Supreme Court; five Court of Appeals slots; and in local elections dozens of superior and district court seats. With just days to go, how will you decide who are the best judicial candidates?
The best sources of information are the N.C. State Board of Elections which sent a pamphlet to all registered voters describing the Supreme Court candidates and appellate court races. For district and superior court races, the judicial performance evaluation is on line at www.ncbar.org. I encourage you to attend a judicial candidate forum, research endorsements, ask people who know. Most importantly, devote the time to make an informed choice.
In full disclosure, I have never had a a contested election. I was appointed to the bench by former Gov. Jim Hunt in 1999 and have been very fortunate to run unopposed in four subsequent elections. I have never had to raise a dime to be re-elected. But I do know that those who run for judicial office, run hard.
There are many other ways to select judges, including judicial schools and examinations that are based on merit selection as done in France and Spain. Many states hold retention elections and non-partisan judicial commissions appoint judges. Whenever politics can be removed from the judicial selection process, our judiciary will be more independent and focus on justice, not politics.
With tidal waves of money pouring into state judicial elections and an increasingly polarized electorate, an independent judiciary is indispensable. Until there is a better method of judicial selection, North Carolina voters must make informed decisions and elect judges who demonstrate wisdom and courage to do justice under the law.
Marcia Morey is chief District Court judge of Durham County. Write to her in c/o firstname.lastname@example.org