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BY ALAN WOODLIEF

The U.S. Supreme Court's recent decision in Caperton v. Massey Coal Co. has focused attention on a long-standing debate -- whether state judges should be elected or selected through alternative methods such as merit and appointive retention systems.

Caperton highlighted one of the most oft-cited concerns with judicial elections, the potential influence of campaign contributions on judicial independence. The Caperton situation was extreme -- the $3 million contribution from the CEO of a mining company to a candidate running for the W.Va. Supreme Court where the company's appeal of a $50 million punitive damage award was pending is the stuff of popular legal fiction, and in fact, John Grisham has said that he had Caperton in mind when he wrote his 2008 novel, "The Appeal."

While such an extreme example does not necessarily dictate that we dispense with our long history of electing judges, it does again caution us to the potential pitfalls of this system and calls us to carefully consider potential alternatives or ways to ensure the effectiveness and integrity of the current system.

Concerns regarding judicial independence are not new with the Caperton decision. Author Timothy S. Huebner in his book, "The Southern Judicial Tradition," explains that Thomas Ruffin, a storied chief justice of the N.C. Supreme Court in the 1800s, decried the election of judges as an assault on the judiciary's independence and feared that elections would lead to "dependent, and by consequence, flexible, cringing, time-serving, weak, bad men for Judges."

Prior to 1868, North Carolina's judges were selected by the General Assembly and served during good behavior, which could conceivably translate to a life appointment. Ruffin was concerned that North Carolina would depart from this system and implement judicial elections. That was the case, as the N.C. Constitution of 1868 ushered in the election of judges, a system that has been in place for 141 years.

The idea of some form of a merit or appointment system did not lie dormant from 1868 to the present. The American Judicature Society, an organization that studies courts and the judiciary with the aim of improving the administration of justice, indicates that in 1974, the N.C. General Assembly considered a merit selection bill, which passed two readings on the House floor before failing on the third reading. In 1977, a similar bill failed on the House floor, despite having the endorsement of the chief justice and the North Carolina Bar Association.

At the suggestion of Chief Justice James G. Exum Jr. and others in 1987, the General Assembly established a judicial selection study commission, and this commission recommended that Supreme Court justices be appointed. On at least four other occasions, in 1989, 1991, 1995 and 1999, the Senate approved bills calling for some combination of merit selection, gubernatorial appointment, legislative confirmation and retention elections, only to have them be defeated or die in the House. The Bar Association has long supported merit selection of judges and has advocated an appointive-retention method of selection.

Our state has taken steps to combat the concerns of bias and loss of judicial independence highlighted in Caperton. In 2002, the General Assembly adopted the Judicial Campaign Reform Act, establishing nonpartisan elections for the appellate courts (later the trial court elections were made nonpartisan), limiting the amount of campaign contributions, and offering candidates who adhere to strict fundraising and spending limits the option of using public financing during their campaigns. In so doing, North Carolina became the first state to adopt full public financing of appellate judicial elections and subsequently has been held up as a national model in this regard. In an opinion piece just this spring, USA Today praised our publicly financed judicial elections, stating that they are "proving their worth."

Puzzling for voters

Still, concerns remain with the popular election of judges, including the perceived inability, or perhaps unwillingness, of voters to discern the qualifications and effectiveness of judicial candidates. An article in the News & Record from Oct. 1, 2008, recognized that judicial elections often puzzle voters, as candidates are prohibited by the code of judicial conduct from stating how they would rule on specific legal questions. Many surveys of voters reveal that they feel ill-prepared to vote for judges.

To remedy this ill, significant effort has also been devoted to educating the state's voters about the candidates for judicial office. Several organizations, including Greensboro's own Court Watch, have made great strides in educating voters with judicial report cards and surveys measuring judges' effectiveness. Many North Carolina newspapers, including the News & Record, continue their tradition of editorial endorsements, and the State Board of Elections publishes a Voter Guide. The Bar Association has also embarked on a judicial performance evaluation program, with its first survey being conducted this summer and results to be released in early 2010. Voters who wish to be informed about judges' effectiveness and fairness can be now.

Because of the public financing and voter education efforts mentioned, our state thankfully does not face a crisis of confidence in our judiciary like that in West Virginia after Caperton. However, there is still room for improvement in the system. Given the General Assembly's forward-thinking approach to judicial campaign reform earlier this decade, we can be optimistic that it will continue to strive to enhance the judicial selection process, perhaps by adopting some form of merit or appointive-retention system.

Alan Woodlief is associate professor and associate dean for admissions and administration at Elon University School of Law.

Selection: The way to ensure that  the best-qualified are on the bench

BY ANDY HAILE

How many of these names do you recognize: Linda McGee, Wanda Bryant, Rick Elmore, Martha Geer, Donna Stroud?

 Unless you practice law in North Carolina, chances are that you don’t recognize any of them. But these are important people. They are the members of the N.C. Court of Appeals, our state’s second-highest court. The Court of Appeals makes decisions that affect individuals and businesses every day.

Other than attorneys who litigate for a living, however, very few people know much about its members. Do you know their judicial philosophies, their “temperaments,” or how they treat the litigants and attorneys who appear before them? Can you name any other members of the Court of Appeals? Of the N.C. Supreme Court? And yet, despite the general lack of knowledge about our courts, North Carolina voters go to the polls year after year to elect who will sit on the bench and decide issues of major importance, including even matters of life and death. 

A lack of knowledge about the candidates is just one reason why judicial elections are a bad idea. Potentially more harmful is the role that money plays when judges are elected. Campaigns require money. North Carolina has adopted a public financing system that seeks to reduce judicial candidates’ dependence on campaign contributions. That’s a positive change, because most contributions have traditionally come from attorneys, the very people who will appear in court before the judge. 

But North Carolina’s public financing system is far from perfect. First, it only applies to the election of appellate judges, not trial court judges. In addition, to qualify for the public financing system, judicial candidates first must raise approximately $40,000. Therefore, even if candidates opt into the public financing system, fundraising still plays a part in the election process.

Moreover, participation in the public financing system is voluntary, and the amount of funds available to candidates opting into the system is limited. Candidates running for the Court of Appeals receive a maximum of $480,000; those running for Supreme Court max out at $700,000. Those limits mean that candidates choosing not to participate in the public financing system could significantly outspend opponents who are receiving public financing. 

In some states, judicial races have turned into high-dollar contests. Candidates in an Illinois Supreme Court race in 2004 spent a combined $9 million on the election, most of which came from campaign contributions. From 2000 to 2006, spending by candidates and political committees for a seat on the Georgia Supreme Court rose from approximately $40,000 to $4 million. Those spending levels would dwarf the funds available through the public financing system.

Less spending in N.C.

Recent judicial elections in North Carolina have not been multimillion-dollar affairs, but they soon could be, especially with our Supreme Court so closely divided (despite ostensibly nonpartisan elections, it’s widely known that four members of the current court are Republicans, three are Democrats). If the amount of spending in other states’ judicial races spreads to North Carolina, candidates who want to stay competitive will have no choice but to opt out of the public financing system. 

So what’s the problem with having to raise money to run for a judicial position? The infusion of money into the selection process raises concerns over judges’ ability to act impartially. Would you like to know that your opponent in court or his attorney had contributed money to the judge’s election campaign, while you hadn’t?  Would that affect your faith in the judge’s ability to fairly and impartially hear your case? For most people it would.

Money has no legitimate place in selecting judges. Judges are not meant to be politicians who reflect the current political mood.  Instead, they should be impartial arbiters of justice, willing to make politically unpopular decisions when the law requires. Campaign contributions cast doubt on judges’ ability to do that. Justice Sandra Day O’Connor had it right when she recently quipped, “Justice is a special commodity. The more you pay for it, the less it’s worth.”    

In addition to the serious concerns over money’s role in judicial elections, elections may not result in the selection of the most-qualified judges. Many well-qualified individuals refuse to run for election because they have no desire to become quasi-politicians, traveling around the state asking for money to fund their campaigns.  Conversely, elections may result in voters choosing judges based on dubious criteria.

Gender plays a role

Empirical evidence indicates that when confronted with a lack of information about candidates, voters tend either not to vote or to vote for candidates of their own gender. As a result, women are more likely to be elected as judges than men, since there are more female voters. In addition, many candidates believe that the position of their names on the ballot impacts their likelihood of success (they believe that those placed first have an advantage over candidates farther down the ballot). These are hardly ideal ways to choose who will make decisions broadly and significantly impacting our state and its citizens. 

Elections are a flawed way to choose judges, but there are alternatives. Federal judges are appointed for life. Several other states have enacted merit appointment processes with shorter tenures. During the most recent legislative session, the N.C. General Assembly considered a bill sponsored by Guilford County Rep. John Blust that provided for the appointment of appellate judges after a rigorous merit selection process. Voters would still have a voice in the judicial selection process by having the opportunity to retain or remove a judge after a relatively short “trial period” on the bench. If the voters elected to retain the judge, the judge would then serve an eight-year term. 

While this proposed legislation was less than perfect (it did not change the election of trial judges), at least it constituted a move in the right direction to get qualified, independent judges on the appellate bench. Justice requires that our best and brightest citizens are selected to serve as judges. The current system of electing judges fails to accomplish that goal.

Andy Haile is an assistant professor at Elon University School of Law and a practicing attorney in Greensboro.
 

Election: Changing current system shouldn’t become a rush to judgment

BY SCOTT GAYLORD

Although Alexander Hamilton thought that the judiciary was “the least dangerous branch” because it had “no influence over either the sword or the purse,” federal and state courts have assumed an ever-increasing role in our federalist system. State courts now handle roughly 98 percent of the cases nationwide, covering issues that touch on all facets of their citizens’ lives. As a result, the selection of state court judges is of critical importance to our system of government.  For the judiciary to provide the requisite check on the legislative and executive branches of government, the selection process must ensure that our judges are independent, accountable and well-qualified. 

Since the adoption of our post-Civil War Constitution in 1868, North Carolina has elected the members of its judiciary. The U.S. Supreme Court’s recent decision in Caperton v. Massey Coal Co., though, has focused national attention on the potential threat to judicial independence created by large, independent campaign expenditures. But the concern over the effect of elections on judicial independence is not new in North Carolina. The North Carolina Bar Association repeatedly has advocated a merit-based appointment system, and the N.C. House of Representatives considered a bill this spring proposing retention elections. These efforts are likely to gain support in light of Caperton.

Although shifting to a merit-based system of judicial selection ultimately may improve North Carolina’s judiciary, there are several reasons to proceed with caution before revamping a provision in the N.C. Constitution.

First, history informs us that campaign contributions are not the only threat to judicial independence. The current system was not simply an unprincipled expression of Jacksonian democracy. Rather, the shift to judicial elections in North Carolina and other states originally was intended, as one commentator has noted, to increase judicial independence by freeing the judiciary from “the corrosive effects of politics and … to restrain legislative power.” For our systems of checks and balances to work properly, the judiciary must be independent of the other coordinate branches of government. That is, a judge must not, as the  adage states, simply be a lawyer with a politician for a friend. 

Moreover, political influence resulting from gubernatorial appointments or committee nominations may be more difficult to scrutinize than campaign expenditures. Each state has rules of judicial conduct that require judges to recuse themselves under certain circumstances. Disclosure requirements make it relatively easy to track individual expenditures to determine when recusal might be necessary. And Caperton now requires courts to monitor expenditures to insure that due process is not violated. In a merit-based system, citizens will have to defer to the integrity of the selection committee and the judicial appointee, even though critics of the current system are unwilling to grant such deference to an elected judge. 

Second, those championing long-term appointments of judges tend to downplay the importance of accountability. As Chief Justice John Roberts has noted, “when the other branches of government exceed their constitutionally mandated limits, the courts can act to confine them to the proper bounds. It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities.”

Under our current system, if one of our judges fails to fulfill her judicial function, the voters can vote that person out and elect someone who better reflects their judicial philosophy. When a judge is appointed for a long tenure, no such check is available, a flaw that retention elections are meant to alleviate.

But retention elections pose a similar threat to judicial independence as periodic elections. Under several current proposals, a committee would review a judge’s performance and issue a recommendation on whether to retain the particular judge. The committee’s recommendation regarding retention is likely to be one of the few details that voters know about the incumbent. The “probability of bias,” therefore, remains. To garner committee support, a judge may feel pressure to rule in ways that either benefit committee members directly or evince a judicial view with which the committee agrees. Moreover, if the committee does not favor retention, the incumbent will need to raise considerable money to respond to the unfavorable recommendation, which would inject the threat of large campaign expenditures back into the process.

Finally, advocates of an appointment-based system frequently contend that merit-based selection is necessary to encourage “the selection and retention of the most qualified persons to serve as judges.” The campaign process may discourage some well-qualified candidates who do not want to be thrust into the limelight or to impose on friends and strangers for campaign contributions.

But a far higher barrier already may exist: Judicial salaries in North Carolina are among the lowest in the nation and are significantly lower than in the private sector. By increasing judicial compensation, North Carolina may encourage more well-qualified candidates from the public and private sectors to seek judicial election without having to alter the current system.

Because the judiciary plays a critical role in our political system, it is important that the judicial selection process yields well-qualified, independent judges who are accountable for their decisions. Improvements to the current system should be welcomed but only after they have been fully considered.

Given that a move to a merit-based system will require an amendment to the N.C. Constitution, voters should make sure that the problems with campaign expenditures are not replaced by the problems that may flow from political patronage.

Scott Gaylord is an associate professor at Elon University School of Law.