Selecting North Carolina Judges in the 21st Century
Appointing judges for life was a late 17th century English idea aiming to protect a judiciary of noble status from domination by royalty. No one anywhere who has written a constitution since 1840 has adopted that practice. Electing judges was an idea of 19th century Americans who believed in the right to self-government and who sought to protect their judges from domination by sordid politicians. Merit selection of judges, subject to periodic retention elections was an idea of early 20th century Americans who believed that law is a science or an arcane technology unrelated to politics and properly entrusted to experts. Many Americans in the 21st century have their doubts about the virtues of self-government, and no one believes that law in America is an apolitical technology that can be entrusted to elite experts.
Contested judicial elections, whatever their utility in the 19th century, are no longer defensible if political campaigns are conducted by costly television advertising that requires the contestants to raise and spend a lot of money in order to secure or hold judicial office. Especially so when those costly means of campaigning are made almost immune to legal restraint as a result of extravagant interpretations of the First Amendment made by the Supreme Court of the United States that protect the right anonymously to attack the integrity of candidates. Presently pending in the North Carolina Senate is a bill (S. 1054) aiming to patch up our judicial elections. No one can believe that it solves all the problems, but it at least addresses them.
Merit selection, whatever its virtues in the first half of the 20th century is likewise no longer defensible when judges and courts all over the nation are daily seen making “impact decisions” of the most overt political nature. While the American and North Carolina Bar Association have long favored merit selection, it is an insurmountable problem to its adoption that so few voters accept the premise of the scheme. It is also a problem that the periodic retention election has proved in recent times to be an invitation to costly electronic assaults on politically defenseless sitting judges.
It is therefore time to try to rethink the problem and revise the Constitution of North Carolina. To find a solution appropriate to our times, we need to lay aside both the idea that the courts can be entrusted to wholly independent lawyer-experts and the idea that political campaigns for judicial office are a constructive method of selecting judges. While it is essential to give the legal profession an opportunity to influence the selection process, it may be equally essential to allow voters a role sufficient to reassure citizens that the courts belong to them and to remind sitting judges that they govern with the consent of their fellow citizens and not by anointment.
It helps in thinking about judicial selection to sort out the judges by their different roles. Superior and District Court judges, the trial judges, are the most important because they have the most direct impact on individual citizens. They exercise great power and enjoy great discretion. Trial judges are also the hardest to select because their job tests qualities of character that are not ordinarily tested in the practice of law, or any other activity. While their political prejudices may influence their work, trial judges do not make law, and hence their politics are not really very important. To restrain trial judges from inappropriate conduct, the most important institution is appellate review. Additional restraint can also be provided by effective enforcement of sound standards of judicial ethics. Especially for trial judges who are exposed to so many opportunities to misuse their powers, this last is a very important feature of a sound legal system.
For these reasons, it would seem that the initial selection of the trial judge should be the responsibility of someone or some group accessible to the organized bar, but not controlled by them. The Governor is the most obvious choice, not least because that officer is accountable to the electorate. It is, however, a problem that the governor’s constituency is statewide and the trial judges serve local constituencies. Moreover, if the judges are to serve limited terms, a judge so appointed would not only be beholden to the Governor for the opportunity to remain in office, but at risk of non-reappointment for reasons having nothing to do with the merits of his or her performance. Accordingly, the judges would lack sufficient independence to forestall political manipulation of the judicial process.
What is needed to select trial judges is a constitutional institution (call it a Commission on the Judiciary) composed of persons appointed by succeeding governors and Senate minority leaders to assure that the group is beholden to no constituency. Perhaps its members might be required to be of an age sufficient to make personal ambition no longer a factor in their judgments, making it likely that they will be inclined to give proper heed to the assessments of lawyers. This Commission might also take on responsibility for the enforcement of the standards of judicial ethics and the evaluation of judicial performance by lawyers and litigants. So far, this thinking tracks that of the advocates of merit selection.
The problem with such a commission as an institution appointing judges is that this would disempower the community in which the trial judge sits and may be insufficient to liberate the judges from an unwelcome servitude, or appearance of servitude, to the elite class who put them on the bench. It is for this reason that merit selection is unsaleable in our time. Indeed, very few states ever seriously considered merit selection of trial judges, apparently for the reason that there was too much political resistance to the idea, especially in rural communities resistant to domination by state governments.
The need for citizen participation might be supplied by a procedure of Voter Confirmation, putting the name of the candidate nominated by the Commission before the electorate in the district in which the judge would serve. This would resemble the retention election, but would be conducted before the judge is allowed to sit on a trial. The only court I know to be selected in this way is the Supreme Court of Japan. Utah requires its judges to stand for a retention election in the third year after their appointment; that is close to a confirmation election. The advantages of holding the election at the outset of a judicial career are that it gives a strong signal to both citizens and judges that the judges are servants to their constituents while making it difficult for an interest group to launch a televised personal attack on the candidate selected by the commission.
To assure some integrity to Voter Confirmation, the Commission should be expected to publicize prospective nominations for comment and then to circulate a guide making the case for its nominations, including explanations of any endorsements but also any protests it may have considered. It should also be prepared to defend its nominees against electronic attack by political interest groups of whatever stripe.
After an initial term of six or eight years in which a judge can demonstrate the personal qualities needed to perform the work of a trial judge, the commission might be expected to make a recommendation as to whether the judge should be retained for an additional period. That decision, too, would be put before the electorate for confirmation. Reconfirmation might be for a longer term, so that the two terms together might constitute for most judges a full judicial career.
Court of Appeals judges entertaining appeals of right have front line responsibility for keeping Superior and District Court judges under restraint. This is a very different job from that of the trial judge. It requires close attention to the details of the record of the proceedings below and to laws and legal precedent cited by counsel. Many such judges, having learned in school that appellate judges make law, presume that they, too, should make some law by writing learned opinions on unsettled points of law. But in reality it is hardly so for the Court of Appeals, because anything they write of significance to anyone other than the parties will be subject to review by the Supreme Court. Hence, their qualifications to make law are of minimal importance in their selection. The qualities most needed in intermediate court judges is that they must be attentive to lawyers and to the conduct of the trial court, and faithful to the guidance of the Supreme Court. What is needed therefore is a process for selecting Court of Appeals judges that will reinforce those traits. The need for adherence to the guidance of the higher court suggests that they should be selected by that court. This would make it clear where the ultimate responsibility for judicial lawmaking should lie. But the Supreme Court might be limited in its selection by requiring prior experience as a trial judge as a condition to the nomination. This would link the Court of Appeals judges to the institutions both below and above them in the structural hierarchy and reinforce a correct sense of what their roles are.
Because of the nature of their work, there is very little to be said in favor of voters confirming or reconfirming the selection of intermediate court judges. There is little political content to their work. It is in no one’s interest for such judges to be looking over the shoulder of the higher court to attract the approval of some group outside the judiciary. And their work is all but invisible, not merely to the electorate, but even to the profession. Voter Confirmation should therefore not apply to them. Their terms might be as brief as six years and renewable, or much longer if they were subject to removal by address by a supermajority of the Supreme Court when its members have lost confidence in an individual judge.
In contrast, it is clear to all that Justices of the Supreme Court of North Carolina hold political office. Moreover, no one today would question the dictum of John Stuart Mill:
The disposition of mankind, whether as rulers or fellow citizens, to impose their own opinions and inclinations as a rule of conduct for others, is so energetically supported by some of the best and some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power.
While restraints are needed, they are not easily fashioned. Citizens and lawyers can unite in the conviction that sitting Supreme Court Justices should be independent from the influences of interest group politics, but it is not obvious that a satisfactory alternative can be devised.
The Voter Confirmation process suggested for trial judges might in some respects seem to be a reasonably agreeable method except that the Commission nominating trial judges should aspire to be as apolitical as circumstances permit in nominating trial judges. That won’t work for the selection of Supreme Court Justices. Given the political importance of their roles, there must be a political forum in which interest groups can compete for the selection of high court Justices whose politics they prefer. The Commission should not be that kind of forum.
I conclude that the best method of selecting Supreme Court Justices is appointment by the Governor with the assent of a supermajority of the Senate. The supermajority requirement would be intended to prevent the appointment of persons known to be partisans of marginal political views that they might be tempted to impose on the people. Because governors and senators are themselves politically accountable to the people to be served if they seat a bad Justice, the case for Voter Confirmation as an additional requirement is less strong. It would, however, serve to emphasize that the Justices are not solely indebted for their power and status to partisan politicians, but also owe their power to all the people.
To assure their independence, the terms of appointment of Supreme Court Justices should be substantially lengthened. In New York, it is fourteen years, in the District of Columbia fifteen. The purpose of such long terms is to diminish the vulnerability of sitting Justices to manipulation by interest group politics. The risks associated with longer terms are much less with respect to high court judges because they exercise very little power solo. Longer terms lend stability to the institution and coherence to judge-made law. A fifteen-year term would generally be a career, for it would be a rare judge who would seek reappointed after serving such a term. Interest group pressure could be mounted on those looking for reappointment. If that is a concern, it could be prevented by restricting the Justices to a single term.
By facing separately the problems of selecting trial judges, Court of Appeals judges, and Supreme Court Justices, this scheme seeks to employ selection methods that are shaped by the different roles to be performed by different kinds of judges. Because the Supreme Court Justices serving long terms would be virtually invulnerable to interest group politics, the judiciary as a whole would be assured almost complete political independence. Yet if the court wandered too far from the conventional understandings, later appointees might be expected to restore its balance. Yet the trial judges would know that their jurisdiction derived from a vote of the people, and the Court of Appeals judges would know that although they are independent of all politics, they are not independent of the law.