Judicial Independence and Accountability: State Courts
This is a subject to which I came in the 1990s. I was of course long aware of the deficiencies of popular election as a means of selecting judges. I had participated in a judicial election campaign in Texas in the summer of 1954. But the alternatives to popular elections did not seem so swell, and states with diverse systems seemd to be getting along.
I do not know whether democracy can survive television, but surely judicial elections were about the first to be substantially stripped of any merit that had possessed. One consequence was to make it possible to buy elections with advertising, a thing that had been previously difficult to do. The cost of judicial campaigns began rising. And misguided Supreme Court decisions equating money with speech made it extremely difficult to conduct such campaigns honorably.
I began to write and speak about the problems. I organized a conference on the subject for the American Bar Association that was held in Philadelphia in 1998. I prepared a volume of readings for the conferees and edited a volume of the papers presented. Whenever I got a chance, I spoke to the problem. I served the Century Fund as Co-Reporter on their project. None of this seemed to have much effect.
In 2000, I aligned with Democracy North Carolina to advance the idea of public finance of political campaigns, an idea that prevails in Europe, Maine, and Arizona. When we could not sell the idea in North Carolina, I hit on the scheme of public finance of judicial campaigns as a means of protecting our judges from the worst features of contemporary judicial politics. I organized a group of bar leaders and former judges to support the notion, and lo and behold, the North Carolina legislature adopted it. Voters’ Guide Proposal. It is worrisome that it lacks adequate funding. And of course it is an imperfect system at best. But then a state chief justice has assured me that no method of selecting judges is worth a damn. And it was my hope of making the scheme work that caused me to decide to seek a seat in the North Carolina Senate. My Campaign in 2004. The system has worked pretty well so far. It survived a constitutional challenge in 2007. It has been extended to other statewide offices, again with benign effects. 2008 was not a good year for the Chamber of Commerce in its efforts to buy seats on highest state courts. And other states (New Mexico, Wisconsin, West Virginia) seem in 2009 to be regarding the North Carolina system as a sort of model for judicial elections. But in 2011, the Suipreme Court held that the matching funds feature of public funding is a denial of the First Amendment right of wealthy citizens, corporations, and organizations to buy the outcome of a contested judicial election. This was but another outrageous decision of a group that is effectively owned by the Chamber of Commerce.
Meanwhile, my somewhat idiosyncratic views were expressed in a bar journal piece. Selecting North Carolina Judges in the 21st Century. I serve on a North Carolina Bar Association committee that will be advancing an amendment to the state constitution in the not-too-distant future. And I also serve on the legislative committee of the North Carolina Advocates for Justice. It remains my hope that the two can get together on a scheme of judicial appointment that can be sold to the General Assembly and to the voters. In 2008, a joint committee of the two organizations was established tin consider the problem, and I was privileged to serve on that committee. The NCAJ in 2009 voted down our proposed reform, but I am hopeful that it will reconsider in light of the Supreme Court's decision constitutionalizing the right of corporations to fund political candidates' campaigns.. But in 2011, it was renewed with modifications. And I published an account of this history in the North Carolina Law Reviews.
That a judge can sit on a case in which one of the parties is a person or firm that funded his or her campaign for office remains an issue to be addressed by the bar and legislature..
An echo of my earlier work on the history of legal education led to the publication of a chapter in my 1998 book, Stewards of Democracy, on the history of the Supreme Court of Michigan. Thomas Cooley was a champion of the election of judges. I think he would approve what we have done in North Carolina. I will publish a full account of the North Carolina experience in 2011.
My other publications on this topic are:
Judicial Independence and Democratic Accountability, 61-3 Law & Contemp. Prob 79 (1998)
Big Money in Texas Judicial Elections: The Sickness and Its Remedies, 53 SMU L. Rev. 263 (2000)
Selecting Pennsylvania Judges in the 21st Century, 106 Dickinson L. Rev. 747 (with Adam Long)
The Independence and Accountability of the Ohio Supreme Court: Recalling the Work of Frederick Grimké, 30 Capital Univ. L. Rev. 455 (2002) (with Adam Long)
A Barnburning Court: The Chief Justiceship of Thomas Cooley, in Michigan Legal History (Paul Finkelman & Mark J. Hershock eds. 2006)
Electing Judges: The North Carolina Experience (forthcoming 2011, available on SSRN)