State Politics

Should NC lawmakers create laws and select judges who review them? GOP senator asks why not.

As former North Carolina judges tour the state trying to educate communities about lawmaker proposals that could give voters less of a say in who rules in the courtrooms, Republican senators provided a glimpse this week of why some think they should have a larger role.

In October, Senate leader Phil Berger appointed 15 state senators to a Judicial Reform and Redistricting Select Committee. There was a meeting this week in which UNC-Chapel Hill law school dean Martin Brinkley and John Orth, a UNC-CH law professor for 40 years, gave the senators present a history of how judges have been selected and elected in North Carolina since the Colonial times.

Alicia Bannon, senior counsel at the New York University Brennan Center for Justice, also was on the agenda with a report on different judicial selection systems used across the country.

North Carolina lawmakers have spent much of the past year focused on the courts.

They have made all judicial races partisan, from the state’s highest court to the district courts, which handle traffic cases, child custody issues and misdemeanors, but decided to do away with the partisan primaries in May that typically would narrow the field of candidates.

The lawmakers are weighing vast changes to election districts that have determined the state’s 272 district court judges, 109 superior court judges and elected district attorneys. As that issue remains unresolved, Berger’s chief of staff has been floating the possibility of lawmakers asking voters whether the state should abandon the election of judges and move toward an appointment process to decide who sits on the bench.

What question would be posed to voters remains unclear. No proposal for an amendment to the state Constitution has been released publicly.

During the presentation by Brinkley and Orth, several Republican lawmakers noted several times that in North Carolina, during the century between Colonial times and the state Constitution in 1868, the legislature elected judges. Then in 1868, voters began selecting judges in partisan elections, and that system continued for another century. In the 1990s, the state abandoned partisan elections for some judicial races, but this past year, the lawmakers reinstated them for the trial and appellate courts at a time when many states are abandoning partisan elections.

Create the laws and judge them?

North Carolina lawyer associations have advocated for years changing how judges become judges, with many supporting an appointment system based on “merit-selection.” Many of the same organizations, though, have been hesitant to support changes being discussed in the legislature. The North Carolina Association of District Courts polled its 272 members on whether they favored a system in which judges were selected instead of elected and the results returned in mid-November showed not only that 69 percent supported holding elections but also that 96 percent of the judges were opposed to giving North Carolina lawmakers a role in appointing judges.

At the Senate select committee this week, Sen. Ralph Hise, a Spruce Pine Republican, questioned why lawmakers in the General Assembly were not in a better position than the governor to appoint judges. North Carolina’s legislators run in districts that sometimes only include one county.

Bannon, who was interrupted many times during her presentation with questions from lawmakers, advocated for a merit system that would leave the ultimate task of appointing judges to a governor who is elected on a statewide ballot and can be held accountable to a public that votes him or her in or out of power.

“When you look at the three branches of governance, there is only one branch of governance that designs, writes and ratifies law,” Hise said during Bannon’s presentation highlighting problems in South Carolina, Virginia and Rhode Island, where lawmakers appointed the judges who decide whether their laws pass constitutional muster. “...When you’re coming to a matter of what does a law mean or what does a law stand for or how is a law drafted or what does a law say, is it not the drafter of the law... that would be the most defining expert of the law itself? As we create it, wrote it, draft it, passed it among two chambers and placed it out, why would it be the role of the government whose sole authority is to execute that law to have that kind of balance of power shifted to them?”

Bannon responded that neither the executive nor legislative branch “has the power to interpret the law.”

Separating government powers

“That would rest with the courts,” Bannon said. “I think that’s kind of the genius of the separation of powers that our constitutional system — both our federal system and state systems — is based on, that you don’t leave the same body that’s responsible for writing the law to interpret the law. And that forces legislators to write laws in a way that are sort of neutral and generally applicable because they’re not going to be able to ...after the fact kind of tweak them for their own benefits. They have to write them in a way where somebody’s neutral and not part of that process will read them and state what they are, and I think that separation of powers is really core to how our government works.”

In South Carolina, Bannon said, the lawmakers have been accused of making backroom deals away from the public eye with who sits in judgment of their laws. The South Carolina State Supreme Court, Bannon said, currently is made up of former lawmakers, leading to questions about cronynism and more. In Rhode Island, scandal caused the state to abandon the legislative appointment process. Bannon praised the system used by Hawaii in which a judicial selection commission gives a list of recommended judges to the governor for appointment, then periodically holds reviews of judges to decide whether they should be retained.

By giving that retention decision to the commission, Bannon said, the model is designed to protect judges from outside influence, political retaliation and special interest spending, which has been a part of North Carolina’s Supreme Court elections more and more.

Who’s more accountable to people?

“With respect to legislative appointments, I think the experiences really suggest some cautions in terms of how those processes have actually sort of operated in practice,” Bannon told the North Carolina senators. “I think there’s a real concern with a legislative appointment system, it can undermine confidence in both the judiciary and potentially the legislature as well because you don’t have kind of clear lines of accountability and it encourages decision-making that is opaque and not kind of clear to the public and so it can really pose, I think, concerns in public confidence.”

Senators from both parties had questions about how to maintain a diverse judiciary. Sen. Floyd McKissick, a Democrat from Durham, advocated for racial and gender diversity. Republicans questioned whether there also should be focus on procedures that guarantee the diversity of judicial philosophy.

Sen. Warren Daniel, a Burke County Republican and co-chairman of the select committee, posed a question similar to Hise’s about why lawmakers would not be in the best position to appoint judges. “What body other than a legislature could be diverse or more accountable to the people?” Burke asked.

The Senate committee is scheduled to meet again next week.

A special session is scheduled for early next year to take up proposed amendments to the state Constitution.

Anne Blythe: 919-836-4948, @AnneBlythe1