Politics & Government

Who gets the power to handpick judges: the governor or lawmakers? Voters will decide

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North Carolina constitutional amendments

Coverage from The Charlotte Observer, The News & Observer and The Herald-Sun of the constitutional amendments you’ll vote on in the November 2018 elections.

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Voters have the chance to decide whether the governor should have sole discretion filling judicial vacancies, or if the legislature should have a role in the process.

While supporters of a proposed constitutional amendment to give the legislature a role say it would help cut down partisanship on the court and increase diversity on the bench, opponents argue the amendment is another example of legislative overreach.

It’s one of the two amendments that are opposed by all five living former governors and six retired chief justices of the state Supreme Court.

Lawmakers had to return for a special session in August to rewrite the judicial appointments constitutional amendment bill after a Superior Court ruling found the ballot language on the amendment to be misleading. Now, the language for the ballot question provides voters with more details on how the commission would work.

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How it would work

Voters will now vote for or against a “constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend at least two nominees to the Governor via legislative action not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.”

If passed in November, the constitutional amendment would establish a merit selection committee with no more than nine members appointed by the chief justice of the North Carolina Supreme Court, the governor and the legislature. The legislature would also establish merit selection commissions for local trial court seats, also appointed by the chief justice, the governor and the legislature. None of the branches appointing the members of the commission would appoint a majority of members. Currently, filling vacancies for judges or justices in most cases falls to the governor.

Under the amendment, individuals could be nominated by anyone for a judicial vacancy, and then the commission would evaluate the nominees’ qualifications. The legislation does not list any criteria for qualifications, but state law requires judges to be licensed to practice law in the state and under the age of 72 (the mandatory retirement age).

The commission would send its evaluations to the General Assembly. The General Assembly would recommend at least two of the nominees to the governor for appointment; there’s no legislative process described in the amendment, so lawmakers would establish that process later.

The governor would choose the new judge from the legislature’s list, and if the decision isn’t made within 10 days, the General Assembly can appoint someone to the vacancy during a joint session of the House and Senate. If the General Assembly isn’t in session, the chief justice can appoint someone to a temporary position until either the governor or General Assembly can act, or until the next even-numbered year election is held.

Political patronage?

Sen. Paul Newton, a Cabarrus County Republican and one of the original authors of the constitutional amendment, says the system of appointing judges is broken.

“We’re seeing that, it’s not hypothetical,” Newton said.

He points to one former governor who appointed her administration’s officials to judicial vacancies as an example. Former Gov. Bev Perdue appointed four people to judicial vacancies on her last day in office. Three of the appointees were part of her administration and had never served as judges before.

She appointed her general counsel, Mark Davis, to a state Court of Appeals vacancy, and her public safety secretary Reuben Young to a special Superior Court judge position. Perdue also appointed Kendra Hill as a special Superior Court judge. Hill was Perdue’s chief ethics officer and deputy general counsel, according to news reports announcing the appointment.

Newton said when there is a “closed-door process essentially driven by political patronage,” there aren’t a lot of opportunities for “unknowns” to get involved. He said anyone could put their name into consideration for a judicial vacancy under this proposal.

He argues the proposed process up for a vote in November is a “much more transparent, bright light, open-door process” compared to the current process.

“If you care about diversity on the bench in North Carolina, you should favor this amendment,” Newton said.

Former Gov. Pat McCrory, who is one of the former governors opposing the judicial appointment amendment, said the amendment isn’t needed.

“The current system was fine,” he told the NC Insider. He said when he was governor he put “an extensive amount of time and process” on picking the right candidate for a vacancy. “It took much more than the two or three weeks that were allotted in the amendment” for governors to decide, he said.

McCrory said his legal team reviewed 10 to 15 applications for every judicial vacancy before winnowing down the field to three qualified candidates. The reviews included interviews and background checks.

“I put it through a very extensive, in fact exhaustive review,” he said. “I considered that an extremely important part of my job and I did it thoroughly and judiciously.”

McCrory said he hasn’t heard a sound argument as to why the amendment is needed, but he is pleased that the General Assembly revised the ballot language. He thinks, at least in their initial versions, the judicial appointments amendment and the amendment reconstituting the state board of elections and ethics enforcement were a way to overturn the state Supreme Court’s ruling in McCrory v. Berger, a lawsuit about the separation of powers between the legislature and the executive branch. “I do think that these two amendments are an indirect way to ignore the Supreme Court,” McCrory said.

Court packing?

Others who oppose the amendment have said it could lead to a “court packing” scheme — in which lawmakers add more judges to the state Supreme Court in order to get more conservative judges on the bench. House Democratic Leader Darren Jackson of Wake County during floor debate called the amendment a “court packing amendment.”

Newton pushed back on that accusation during an interview with the NC Insider. “That is rank speculation,” he said. “There is no plan to pack any court.”

He said adding seats to the court has nothing to do with the amendment, because lawmakers already have the ability to do that. “I think (the accusation) is designed to scare voters to vote ‘no’ for this,” Newton said.

The “Nix All Six” campaign, which is advocating against all six of the constitutional amendments on the ballot, claims on its website that the amendment would give the “current legislature the power to ‘pack’ the NC Supreme Court by adding two extra seats and appointing their friends to those seats — thus choosing who reviews cases against their own laws.”

No such language exists in the amendment or the legislation passed by the General Assembly. The legislature has the authority to add up to two seats to the court, but under current law the governor would select those judges until the next election. The hypothetical scenario described by amendment opponents would require incumbent Republican Justice Barbara Jackson to win re-election in order for two new conservative justices to tilt the partisan balance of the court, which now consists of four Democrats and three Republicans.

Merit selection

Adding to the call against the amendment are six retired state Supreme Court chief justices — Rhoda B. Billings, James G. Exum, Henry E. Frye, I. Beverly Lake, Burley B. Mitchell, Jr. and Sarah E. Parker — and dozens of attorneys in the state. The chief justices opposing the amendment include four Democrats and two Republicans. The state Democratic Party has come out against the amendment, while the state Republican Party supports the amendment.

The merit selection debate is nothing new in North Carolina. In December 1996, a commission studying the future of the state’s court system recommended a merit-based appointment system for judges, rather than partisan election, and lawmakers discussed the possibility earlier this year. The constitutional amendment would not do away with regular election of judges. Newton said lawmakers looked around the country and talked to experts about how to write the constitutional amendment.

”We kept elections, and we limited this to vacancies because we think electing judges is sacrosanct in North Carolina,” Newton said, adding that the proposal on the ballot pulls from best practices across the country.

North Carolina is currently one of just seven states that allows the governor sole discretion to fill a Supreme Court vacancy. Data from New York University’s Brennan Center for Justice shows that 34 states use some form of merit selection to fill state Supreme Court vacancies. Twenty-three states use a merit selection commission to fill state appellate court vacancies, according to the Brennan Center. For trial court vacancies, 34 states use some form of merit selection.

A recent poll from Spectrum News/SurveyUSA found that 36 percent of those polled were against the judicial appointments amendment, and 35 percent were for it. More than a quarter of those polled — 29 percent — were undecided. It was the least popular of the six constitutional amendments in the poll.

Newton said that while on the campaign trail, he’s trying to break through the Democratic Party’s talking points to determine why voters are against the amendment. “I typically draw blank stares because they don’t seem to understand it,” Newton said.

Support for the amendment, however, seems to be waning in Newton’s own party. According to a report from the Fayetteville Observer, Sen. Wesley Meredith, a Cumberland County Republican, said he did not support the amendment during a candidate forum. Henderson County Republican Rep. Chuck McGrady, in a recent blog post on his legislative website, said he’s inclined to vote against it.

“Elections have consequences, and our constitution gives governors the power to make appointments,” he wrote. “While I’m not sure that there is a huge problem with gubernatorial appointment of judges supporting a need for the amendment, I do like the idea of merit selection of judges. However, my inclination is to vote against this particular amendment.”

Both McGrady and Meredith voted for the measure when it was in the legislature.

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