A better path to picking judges

At Campbell Law, we are proud to have inherited a fascinating exhibit from the Supreme Court, “First Ladies of the North Carolina Judiciary.” When we dedicated it, I apologized for the unfortunate placement of a fire extinguisher between the panels. Chief Justice Parker guffawed, saying she thought it was my clever nod to history. It turns out that when Chief Justice Susie Sharp ran for the position, her opponent was a fire extinguisher salesman with a high school diploma.

Although we escaped this result and other close calls, election of appellate judges is problematic. Persons competing for a cloistered and intellectual position are forced onto the campaign trail where they can say little of substance. Now, dark money is flowing into races from all sides determined to elect judges of a particular bent. We can do better.

Chief Justice Martin boldly stated last summer that the time for merit selection of appellate judges has come. There seems to be a growing acceptance on all sides that he is right. But the term “merit selection” covers a swath of procedures, and the devil is in the details. What we need is a process that guarantees that the best lawyers in our state, in terms of character, intellect and achievement, can compete fairly for these positions. What we must avoid is some vaguely worded constitutional amendment that will simply allow whichever party is in power to march their cronies through an illusory process onto the appellate courts.

Here is my proposal. We should constitutionalize a merit selection panel of enormous prestige whose conclusions would be widely respected. It should consist of the incumbents in seven stated positions: the Chief Justice, the Chief Judge of the Court of Appeals, the Speaker of the House, the President Pro Tem of the Senate, the president of the North Carolina State Bar, the president of the University of North Carolina, and the law dean senior in service in the state. Membership would be fixed at the time the notice of vacancy is given. To vote on a particular selection, a given panel member would need to personally serve.

Here’s how it would work. When there is notice of a vacancy, the panel would take applications and nominations and, within 60 days, provide the governor with the names of the most qualified three candidates, one of which the governor must appoint. The panel would be free to determine its own procedures, and all of its deliberations would be strictly confidential. This process could also work for reappointments. If an incumbent appellate judge desires another term, the panel, after a period of public comment, would evaluate the incumbent’s performance and recommend to the governor whether the incumbent was deserving of reappointment.

Why this particular group? Its membership would be able to evaluate candidates from a variety of perspectives. The legislative members would know the political backgrounds of the candidates; the judicial members would know the records of trial judges desiring promotions and of the lawyers appearing before them; the bar representative would provide information about professional reputation; and the academic members would insure consideration of intellectual ability and educational achievement.

And think about this: Were this procedure in place today and a vacancy to occur, the names would be vetted by a panel made up of Chief Justice Mark Martin, Chief Judge Linda McGee, Speaker Tim Moore, Senate President Pro Tem Phil Berger, UNC President Margaret Spellings; Duke Law School Dean David Levi and N.C. State Bar President Mark Merritt. Who would have any doubt about the ability of these luminaries to send three outstanding names to Gov. Roy Cooper for his selection? It is an elegantly simple procedure that would work efficiently and put our state in the creative forefront of solving the age-old issue of how to pick judges.

This story was originally published September 13, 2017 at 9:23 AM with the headline "A better path to picking judges."