When I began practicing law in North Carolina in 1977, state court judges seeking reelection were seldom challenged. This is no longer the case. Now many judicial seats are contested, and many of these campaigns are spending increasingly large sums of money. That raises serious concerns about the independence of our judiciary.
As an Observer editorial recently pointed out and a national study confirms, this situation “threatens to reduce the judiciary to the same political player as government’s other branches.” And it places our judges, who are supposed to be independent and nonpartisan, in an ethical quandary.
People are understandably suspicious of the motives of contributors who give large sums of money to elect judges. Yet candidates for judgeships in contested races need money to make their case to the voters. And in statewide races, such as those for North Carolina’s appellate courts, winning costs more than ever.
In 2014, North Carolina ranked No. 2 in the nation in spending on Supreme Court races. In 2016, four Court of Appeals races are on the ballot, this time with candidates identified by political party. Our state could rise to No. 1 – by no means a favorable distinction.
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Where does this money come from? Much of it is solicited from lawyers and clients who have cases in the courts. An increasing amount comes from private interest groups who are advocates in issues before the courts. Since the U.S. Supreme Court has lifted most restrictions on corporate campaign spending, the specter of a judiciary brought to you – or, some fear, bought for you – by corporate money cannot be dismissed.
This raises thorny questions about judicial impartiality. A West Virginia case illustrates the problem.
A jury there had awarded $50 million in damages to plaintiffs suing Massey Coal Co. Massey appealed to the West Virginia Supreme Court. While the case was pending, Massey’s chairman poured $3 million into a campaign to defeat one of the justices seeking reelection. The new justice, elected with the $3 million boost, declined to withdraw from hearing the appeal. He joined the 3-2 majority in a vote to reverse the verdict as Massey wanted.
The U.S. Supreme Court recognized the injustice and reversed the decision, citing a “constitutionally unacceptable appearance of impropriety.” But it did so without drawing any clear boundary.
The drafters of the U.S. Constitution favored appointed judges. In Alexander Hamilton’s opinion, judges nominated by the executive, confirmed by the Senate, and serving so long as they demonstrated judicial “good behavior” was “the best expedient” for securing “a steady, upright and impartial administration of the laws.” That system prevailed for the federal judiciary. And similar systems are employed by other states, including neighboring South Carolina.
Legislators, presidents and governors are elected officials, so politics inevitably must play a role in the appointment and confirmation of judges. But the threat to judicial independence is nowhere near as great as in our state’s system, which requires judicial campaigns to raise ever higher amounts of money from groups and individuals who have business in the court.
To change to an appointive system would require amending our state Constitution, but the effort would be worthwhile. What’s at stake is nothing less than an independent, honorable system of justice.
Hinson practices with James, McElroy & Diehl and serves on the N.C. Judicial Standards Commission. The opinions are his own.