Giving politicians – not voters – a bigger say in selecting judges.
Returning partisan politics to the justice system.
Squeezing African-American judges off the bench.
Those are among the charges that critics are leveling at North Carolina’s Republican legislators, and what drew hundreds of sign-waving protesters to rally outside the General Assembly this past week.
Lawmakers already have shrunk the state court of appeals, put party labels on judicial races, eliminated public financing for court elections and done away with this year’s judicial primaries.
Additional proposals would change the way judges are chosen, redraw the districts in which they serve, and shrink their terms – now as long as eight years – to two.
Nowhere in America are so many changes coming to courts in such a relatively short time, says Bill Raftery, an analyst with the National Center for State Courts.
Republicans say their reforms are long overdue in a system that, despite changes in population and workloads, has seen no major adjustments in decades. Many of the moves, according to their supporters, are designed to make judges more accountable to voters or to make voters more informed on whom they are considering for the bench.
“We’re looking at a variety of potential solutions to what is a judicial system structure that’s been neglected except for a few minor changes for 50 years,” says Sen. Dan Bishop, a Charlotte Republican – and lawyer – who co-chairs a Senate committee on the judicial system. He expects lawmakers to pass more changes this month or next.
But critics say the far-reaching overhaul threatens to undermine confidence in North Carolina’s justice system by injecting politics into the courtroom. One analysis, for example, found that proposed new districts would elect a disproportionate number of Republican judges. In Mecklenburg County, one proposed map would have 17 incumbent judges competing for two seats.
“The real shame of it is the public already starts with a perception that politics matters with the courts,” says attorney Michael Crowell, formerly with UNC’s School of Government. “In my experience that’s not true. The way the legislature’s dealing with these issues reinforces that view … and hurts the credibility of the courts.”
Mecklenburg County Juvenile Judge Lou Trosch says new proposals have seemingly come every day. “I’m concerned that the notion of a strong and independent judicial branch … is at risk,” he says.
Critics say politics not only threatens the public perception of justice under the law but could impact the laws themselves. State judges, like their federal counterparts, have been asked to resolve challenges to laws passed by the legislature. Many call it a power grab by the Republican-controlled legislature timed to counteract potential Democratic gains in the 2018 elections.
Few dispute the notion that changes are needed. But unlike earlier efforts to reform the system, there’s no blue-ribbon commission or lengthy process of assembled stake-holders behind the current changes.
Crowell describes earlier evolutions as “deliberate, almost glacial.” A process that started in 1955, he says, wasn’t fully completed until 1970.
Republicans reject suggestions that their changes are too hurried or political.
Rep. Justin Burr, an Albemarle Republican who introduced legislation to redraw judicial districts, defended the process to a House-Senate committee this week. Since introducing the bill seven months ago, he said, it has been through multiple committees and hours of discussion.
“I welcome any of you to name a bill that’s had a more thorough vetting process,” Burr said. “When it comes to judicial districts, the status quo isn’t acceptable.”
Senate Rules Chair Bill Rabon, a Southport Republican who introduced Senate Bill 698 which would require judges to run every two years, has said Republicans are trying to take politics out of the system.
“We’ve been labeled as the bad guys,” he said. “The removal of partisan labels by Democrats was partisan. … Public financing was partisan… We’re trying to do the right thing in a nonpartisan way.”
Bishop says lawmakers have an obligation to make changes.
“In the face of some glaring constitutional deficiencies… it would be contemptuous of the constitutional rights of citizens to sit on our hands and do nothing,” he told a Senate panel this month.
Exhibit A in that list of deficiencies is the disparity in size of judicial districts.
In Mecklenburg, one Superior Court district wraps around the county from Davidson to Steele Creek to Ballantyne. It has 374,000 registered voters. Another district mainly in north and west Charlotte has 114,000. They each elect the same number of Superior Court judges.
In written testimony to the Senate panel, Crowell acknowledged the disparity. It was, he wrote, a result of earlier political tinkering, court decisions and uneven population growth. In one district, he said, there are 250 felony jury trials a year. In another, only 20. And one district court district handled 2,800 child-support cases while another disposed of 260.
In October, the House passed a bill introduced by Burr that would redraw judicial districts across the state. He has called the measure an attempt to address disparities and correct nearly six decades of piecemeal tweaks to the districts.
Critics, though, say the plans are designed to elect more Republican judges. An analysis by N.C. Policy Watch found that one proposal would result in fewer African-American District Court judges, over half of whom would find themselves in the same district as another black incumbent.
This week the Southern Coalition for Social Justice released a report that said just that. It called the GOP proposal “a gross political gerrymander of our state’s legal system, designed to ensure that Republican judges will be elected in a disproportionate number of districts statewide.”
Basing its analysis on 2016, non-judicial statewide elections, it found Republican judges would be expected to win at least 70 percent of Superior Court races and up to 71 percent of District Court races. (Using the same criteria, it found Republicans dominate in 59 percent of current Superior Court districts and 57 percent of District Court districts.)
And a group called Fair Courts NC has said that under the GOP plan nearly half of all African-American judges would be packed into districts with another incumbent, forcing them to run against each other or step down.
Republican Bob Orr, a former state Supreme Court justice, doesn’t dispute that changes are needed in the districts. He’s concerned about the process.
“What concerns me the most, and this concerned me when Democrats were in charge, you don’t need the legislature diddling with the judicial system to get partisan advantage or litigation advantages,” he said.
Except in the event of judicial vacancies, North Carolina voters have always elected their judges. Now the General Assembly is considering ending elections altogether in favor of appointment.
It’s not a new idea.
“Merit selection” has been around since the Progressive Era, and seen as a way to take politics out of the law. In the 1990s, a lengthy review by The Commission for the Future of Justice and the Courts recommended it for North Carolina. Member Sis Kaplan of Charlotte, who chaired the Governor’s Crime Commission, says while she’s still open to judicial appointment, “the devil’s in the details.”
The details are who appoints and who recommends.
One proposal under consideration in the legislature would have the chief justice, current Republican Mark Martin, appoint a seven- to nine-member commission that would evaluate candidates for District or Superior Court judgeships and rate them “qualified” or “not qualified.” Qualified candidates would go to the General Assembly, which would send three names to the governor for appointment.
The appointed judge would serve until the second general election after his or her appointment and face a retention election for a 10-year term.
Seventeen states now use somewhat similar systems, according to New York University’s Brennan Center for Justice. North Carolina and 20 others use contested elections. Twenty-seven states use gubernatorial appointments, usually with vetting by a nominating commission.
Critics say the plan being considered in North Carolina leaves too much discretion in the hands of lawmakers. Charlotte Attorney James Wyatt calls it “repugnant to the constitutionally indispensable principle of the independence of the judiciary.”
“It will lead to the selection of judges who either are the best friends, relatives or biggest political contributors of powerful legislators, and judicial selection will be moved from a public process into the backrooms and halls of the legislature,” he says.
Politics or fairness
While all these proposals are on the table, lawmakers could deal first with judicial districts. Bishop, the Republican senator, says they have a responsibility to voters.
“It needs to be fixed before this year’s elections,” he says. “If we leave it, my own view is that voters in Mecklenburg County who’ve been deprived of voting power …deserve that fix now.”
Some suggest GOP lawmakers appear motivated by politics.
“I think their urgency is they’re reading the tea leaves and saying ‘Hmm. We may not have a super-majority (after the election),” says Orr, the Republican former justice. “And if we’re going to get it done, let’s get it done so we can override the governor’s veto.”
Alicia Bannon, a senior counsel at the Brennan Center, says the danger is the perception of partisan bias.
“When you start blurring the line between politics and judging, that can really undermine the public’s confidence in our court system,” she says. “Judges, they don’t have armies. They don’t have the power of the purse. What they have is their legitimacy in the eyes of the public.”
An online version of this article mischaracterized the Southern Coalition for Social Justice's description of partisan leanings of current judicial districts. The Coalition's descriptions were based on how the districts voted in 2016 state elections, not the party registration of judges.