Today’s news accounts and our daily conversations reflect a time of deep division for the direction of our state and nation. Accompanying this division is a flood of information from the press and social media, narrowing the attention span of citizens for subjects deserving far more attention than they receive. One such subject is protecting the independence of our judiciary.
When retired Justice Sandra Day O’Connor cautions that “the threats to judicial independence are as great as I have seen in my lifetime,” we should take notice. To illustrate her point, she goes back to another time of division, citing the widespread doubts whether the public would accept integration and the Supreme Court’s decision of 1954 in Brown v. Board of Education. In time, but by no means a brief time, our nation came to terms with Brown and its progeny, including another landmark decision in 1971 from here, Swann v. Charlotte-Mecklenburg Board of Education.
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What accounts for this taking hold? Our willingness as citizens to accept the authority in the rule of law our courts hand down. And this willingness depends on the public’s trust in the fair, impartial administration of justice. And critical to holding that trust is the public’s perception of fairness, impartiality, and independence.
Laws affecting the election of judges gain few headlines and, when they do, they provoke limited discussion in the public arena. When the General Assembly eliminated public funding for statewide judicial races, few outside the legal profession expressed concern. The same reaction followed when the General Assembly returned partisan labels to all candidates for the Supreme Court and the Court of Appeals; likewise, when the law was passed to place those running from the Governor’s party first on the ballot in Court of Appeals races (each of those candidates won.) This year, the General Assembly has added partisan labels to those running for Superior Court and District Court races and eliminated judicial primaries, so that now a winning candidate has only to tally the most votes – not even a majority.
In its last session, the Senate proposed a constitutional amendment to shorten the terms of all judges in North Carolina to two years. Terms are currently eight years (except for district court judges who hold four- year terms). As Chief Justice Mark Martin stated, “Electing judges for two-year terms would force judges to raise money constantly, and would disrupt the administration of justice.”
All of these measures have a common denominator: an attempt to turn those pursuing judicial service – regardless of their intentions – into “regular politicians.”
The concept of judges as politicians runs contrary to the Founders’ fundamental ideal that those who serve in the judiciary would not be partisan politicians. The oath all of our judges take pledges allegiance to the Constitutions, state and federal, and to the rule of law. What judges do each day should have nothing to do with politics.
We are Fellows in the American College of Trial Lawyers (www.actl.com). The College is a non-partisan, national organization of trial lawyers – both plaintiff and defense, civil and criminal, representing people and companies from all walks of life. The College advances no political agenda. Central to its tenets is protecting judicial independence, a concept embedded in our nation’s founding documents. In Federalist Paper No. 78, Alexander Hamilton spoke to the critical role that judges play in ensuring our democracy functions. Hamilton spoke of the duty “to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”
We, as well as the North Carolina Chapter of the American College of Trial Lawyers, oppose the shortening of judicial terms to two years. We encourage you to do so. It will undermine both the reality and perception of judicial independence and the fair administration of justice in North Carolina.
Wester is a member of Robinson Bradshaw, and Wyatt is a member of Wyatt & Blake, LLP. They have over 60 years of combined experience trying cases in state and federal courts.