Appointing judges won’t purify their judgment

N.C. Supreme Court Chief Justice Mark D. Martin says the time has come to appoint judges.
N.C. Supreme Court Chief Justice Mark D. Martin says the time has come to appoint judges. hlynch@newsobserver.com

I can’t fully embrace the eloquent cynicism of Robert Penn Warren’s famous line: “Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud. There is always something.”

But the dark collision of desire and delusion he depicts in “All the King’s Men” – a portrait not so much of American politics but human nature – seems a lot closer to reality than the idea that it is society that corrupts innocent mankind.

In American religion, the sublime version of that idea has long fueled the evangelical fire for salvation that says we can be freed from this mortal coil by accepting the absolute truth of Christ.

In American politics, it informs the progressive belief that people and society can be perfected through the embrace of the absolute truth of its views about, well, everything.

Where Protestants speak of awakenings, progressives strive to be woke.

I admit that is a pretty long wind-up for a column about whether we should heed the growing calls to appoint, rather than elect, appellate judges in North Carolina. But the issue, in fact, raises fundamental questions about human nature and whether we can create the conditions that will allow judges to transcend their own self-interest and reach Olympian heights of wisdom.

Many states already select judges on “merit” rather than the popular vote. Panels of legal experts pick the jurists they deem to be the most qualified.

Chief Justice Mark Martin, a Republican, stated last summer that we should adopt such a system in North Carolina. His view has been endorsed by many in the legal community, as well as some progressive voices in our state.

Three views – all of which reflect the self-interest of the legal community – are catalyzing this push.

The first is the idea that the law is a challenging vocation that requires great expertise. Lawyers are, indeed, highly trained professionals whose talents and skills are not the same as those of a politician. Their self-image is tied to the notion that they are above the fray. This is, of course, a delusion. If judges only called balls and strikes, read the law and each case with a pure and open mind, we wouldn’t care who presidents appointed to the Supreme Court.

The second view is the understandable distaste among judges for engaging in the grubby work of pressing the flesh and dialing for dollars.

The third view casts the push for appointed judges as a high-minded effort to free them from the supposed corrupting influence of all that money. This perspective is chiefly pushed by progressives, who believe that a pristine political state, where people only consider issues on their merit, would deliver 100 percent support to their view. They favor appointed judges because they believe that, in the long run, they will see things their way.

Does anyone think progressives would favor this approach if they didn’t think it would serve their interests?

All three views reflect the effort of one group – who see themselves as more enlightened than everyone else – to seize power now vested in the people.

They ignore the fact, which Fordham law professor Jed Shugerman details in “The People’s Court: Pursuing Judicial Independence in America,” that America began electing judges in the 19th century because of concerns about corruption and partisanship.

They also run counter to the growing sense among the American people – see Donald Trump’s election – that the elites who run our country are better at serving their own interests than the nation’s. For a deeper look at this issue, I highly recommend Columbia law professor Phillip Hamburger’s short book, “The Administrative Threat,” which shows how the expansion of voting rights to blacks and women during the 20th century was countered by the rise of a vast, unelected federal bureaucracy.

Nevertheless, it might make sense to appoint judges if a strong body of evidence shows they are much better jurists than those who are elected. It does not. Studies show their error rates are almost the same and appointed judges are as likely to rule on partisan grounds as their elected colleagues.

Truth is messy because it is defined by human beings who are driven not just by knowledge and compassion, but desire and delusion. Democracy remains the best system of government because it provides the most room for countervailing forces to collide, to discover a wisdom that surpasses that possessed by any individual or group.

Contributing columnist J. Peder Zane can be reached at jpederzane@jpederzane.com.

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