Legislators in North Carolina are at it again. Chronically displeased with how judges are selected in the state, they are once again considering modifying the judicial selection system. While the debate over the best way to select judges is not limited to North Carolina, what is unusual is that this debate has resulted in successful legislation that has radically reshaped the judicial landscape.
Consider that in the last year North Carolina has succeeded in reducing the size of its Court of Appeals and eliminating primary elections for judicial races. If we go back further, in the past 20 years North Carolina switched from partisan to nonpartisan elections (before switching back to partisan elections) and instituted a public financing system (later to be ended). And there are also failed legislative attempts, like the 2015 bill passed (and struck down) which would have allowed incumbents to opt to run in uncontested retention elections.
The General Assembly appears ready to move again, with active legislation aimed to give them the authority to appoint trial court judges and plans to change the selection method for appellate court judges being discussed by the newly minted Select Committee on Judicial Reform and Redistricting. All of the four proposed plans presented to the Select Committee are radical departures from the status quo — a system that was put in place just three years ago.
Moreover, each of the four proposed plans have one thing in common: the effective removal of voters from the judicial selection process. Indeed, the only role for voters is in an uncontested retention election, which is present in only two of the four proposed plans.
North Carolina has directly elected its judges in contested elections since 1868. Indeed, prior to the recent flurry of legislative activity, there were zero legislative reforms to judicial selection in the state from 1868 to 1996. The General Assembly now seems poised to end this long history of direct public participation in the important issue of judicial selection.
Why? There are two possibilities, one sincere and one cynical. The sincere possibility is that voters do not know what they are doing in these elections, better judges will emerge if voters are not involved, and judicial elections (particularly partisan elections) compromise the legitimacy of the institution.
There is a large scholarly literature showing that each of these concerns does not survive empirical scrutiny. Voters participate in judicial elections and they participate meaningfully; they make choices consistent with their preferences. Moreover, there is no empirical evidence that judicial elections harm the legitimacy of the court; in fact, there is evidence that suggests elections enhance the legitimacy of courts. And there is no systematic evidence that one gets “better” judges under a selection system that removes the public.
So this leaves us with a second, cynical, possibility: the majority party of the General Assembly wants to change the method of selection because they are worried about losing elections.
If the public is to have confidence in our institutions of government, then government officials must have this confidence as well, and refrain from modifying institutions without a compelling reason that they are not serving the public well.
There is no perfect method of judicial selection; there are strengths and weaknesses of each. That is not the real issue here. The important issue is the North Carolina General Assembly again attempting to modify the method of selection in order to achieve the outcomes they want on cases before the courts. Anyone who is concerned with the legitimacy of the courts — liberals and conservatives — should resist this attempt to control the courts. North Carolina has a long history of trusting the public’s judgment on judicial selection. There is no reason to move away from that now.