The Founders realized there has to be someplace where being right is more important than being popular or powerful and where fairness trumps strength. And in our country, that place is supposed to be the courtroom.
Retired U.S. Supreme Court Justice Sandra Day OConnor
Speaking in Charlotte in the spring of 2009, Justice OConnor stated: The health of our entire legal system depends on our having a strong state judicial system but warned that today we are confronting greater threats to judicial independence than in the past. In particular, she decried the flood of money coming into our courtrooms by way of increasingly expensive and volatile judicial elections.
In 40 days, North Carolinians will go to the polls. On the ballot will be candidates for our Supreme Court, Court of Appeals, and Superior and District Courts. More money will be poured into this years races than ever before. But as is always the case, our citizens will enter the voting booth knowing little or nothing about most of the candidates for the bench.
For all the arguments that the public wants to vote for judges too, the evidence of that is weak indeed. In the 2008 general election, North Carolinians cast 1.2 million fewer votes for our Supreme Court than for president (a drop-off approaching 30 percent). Of the votes cast for judges, thousands are based on name recognition, ballot position, or some other criterion entirely irrelevant to the candidates qualifications.
Election proponents respond: The voting public knows as much about would-be judges as they do candidates for our county commissions, city councils, and General Assembly. Even if this is true, is it the best we can do? As important as these positions are, no commissioner, no councilman, no state (or national) legislator signs a death warrant, awards custody of a child, or is the final arbiter of constitutional rights.
I wish every citizen could spend an hour or two in one of our states domestic violence courtrooms. Nothing leaves such a vivid impression of the authority we give our judges. Yet when we vote for them, we hardly know their names.
Electing judges in our current free-for-all system misses this critical fact: what judges do is different from what every other elected official does. Candidates for governor and the legislature run under party banners. They tell us what they will do (or try to do) if we elect them. The best judges will never say how they would rule in a case before they have heard the facts and studied the law. The vast majority of cases have no political cast whatsoever, and the rulings in those cases are neither liberal nor conservative.
It is clear that our founding fathers had these concerns firmly in mind. To remember one, Alexander Hamilton, in Federalist No. 78, warned that electing judges would mean that judges would have too great a disposition to consult popularity to justify a decision that should be grounded in the Constitution and the laws. Political accountability to the electorate is a requirement of those we choose for the legislative and executive branches. Our judges first and foremost accountability, however, must be to the rule of law.
The argument I advance here does not eliminate the peoples voice in the judicial branch. The U.S. Constitution, in providing for the selection of federal judges, gives us a road map. The president appoints a nominee for the federal bench and the Senate must confirm that nominee by a majority vote. Thus two arms of the government, both answerable to the people, are centrally involved in the process. The federal model provides sound instruction for reforming our system in North Carolina. Details of the reform merit full analysis and rigorous debate, including whether a commission of lawyers and laypersons would serve to screen those candidates the governor would appoint, and the General Assembly would confirm. Likewise, we should debate whether to hold retention elections after a first term of service for those appointed and confirmed.
Let me acknowledge that what I have proposed here will not remove all politics from our selection of judges. Yet the reforms laid out above will more reliably produce excellent outcomes in who serves on our states bench. Likewise, when millions of dollars stop pouring into judges campaigns, it will enhance the publics belief in our judges impartiality and independence.
Justice OConnor said: When you enter one of our courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law. I have confidence in the collective judgment of our states citizens when fully informed to recognize that we need to move our judges outside the vagaries of the election process. Let us get on with that effort.