Partisan Elections Shouldn't Lead to a Partisan Judiciary | Eastern North Carolina Now

    Publisher's note: The author of this post is Rick Henderson, who is editor-in-chief for the Carolina Journal, John Hood Publisher.

Party labels give voters an idea of a judicial candidate's philosophy, but sitting judges shouldn't become partisan cheerleaders

    "Politics have no place in our court system in North Carolina or any place else. Fairness deserves better than that, equality deserves better than that, and justice deserves better than that."

    Fine sentiments, expressed by N.C. Supreme Court Associate Justice Mike Morgan in a speech late last month at West Henderson High School.

    Too bad the balance of Justice Morgan's remarks, as reported in the Hendersonville Times-News, and the venue - the Henderson County Democratic Party Convention - undermined that noble message.

    "It's wonderful to see so many fired-up Democrats ready to work. We're going to go out and win some seats in some elections in 2018," Morgan said.

    Morgan said the election of Donald Trump has energized Democrats in several special elections.

    "There were upset victories in Virginia, there were upset victories south of us in Alabama. Yes, the tide is turning. It's turning in this country, it's turning in North Carolina and it's turning here in Henderson County," Morgan said. "The voters of North Carolina have come back home. We need to roll up our sleeves and slide on our boots. We're moving forward together and taking everybody with us."

    He gave another call to partisan action, according to the paper.

    "We're going to turn North Carolina blue, but rest assured, it's not going to be easy, because the other side has shown they're playing for keeps."

    Statements like these are unseemly (at a minimum) for a sitting judge. They'd be wrong if a Republican judge said something similar at an event sponsored by a GOP group. Judges aren't supposed to be partisans who give their party's interests any consideration as they weigh legal or constitutional disputes.

    If a party files or appeals a lawsuit thinking his side would gain an advantage depending on the party affiliation of the judge, then our judicial system has become a rubber-stamp for the party in control.

    With the state Supreme Court split along party lines, four Democrats and three Republicans, the justice's remarks are unsettling. Especially since several controversies in state court involve battles with clear partisan undertones, including scuffles between Democratic Gov. Roy Cooper and the Republican-led General Assembly over separation of powers. A court divided along partisan lines any time a partisan dispute arises serves raw power, rather than justice.

    Even so, Morgan's sentiments aren't a reason to abandon partisan judicial elections at every level - the system in place not only in North Carolina but also in six other states.

    Why? University of Pittsburgh political science professor Chris Bonneau gave compelling reasons in a white paper recently published by the Federalist Society. In it, he concluded the Tar Heel State's way of picking judges is best.

    First, consider how other states fill vacancies on the bench. The most common method is assisted appointment, or merit selection. In about half the states, some outside group - a panel of experts, or even a partisan commission - submits a list of nominees to the governor, who selects one. Some states require the pick to win confirmation from the legislature. The judge later faces voters in a retention election. A judge winning the election gets a new term; a losing judge would be replaced using merit selection.

    Leaders in the state Senate are interested in this alternative, and it would take a constitutional amendment to make it happen.

    Next is nonpartisan elections (used in about a dozen states). The Democratic-dominated General Assembly shifted North Carolina from partisan to nonpartisan elections around the turn of the 21st century, when Republicans started winning more elections than Democrats liked. The GOP gradually switched things back when Republicans reclaimed the legislature.

    Finally, a handful of states either have the governor or the legislature appoint judges, and many states elect judges at some levels and appoint them at others.

    No system is ideal. Having the legislature or the governor appoint judges invites a judiciary that's beholden to the people doing the picking. So can any process letting politicians rather than voters choose among nominees offered by an "independent" commission.

    In his paper, Bonneau found partisan elections the best way to select judges for several reasons. Party labels suggest a judge's basic ideology, information voters might not get since judges aren't supposed to say how they would handle specific issues before them. (Unless they speak at partisan rallies, of course.) Selection committees generally meet in private, they don't publish their works, and the public often has little or no input in committees' decisions. And judges with life tenure can let their personal biases run rampant - and those judges are hard to replace.

    Disagree? Want to hear more? Some of the best legal minds in the region will discuss judicial selection Monday, May 7, in Raleigh. The lunchtime event, co-sponsored by the John Locke Foundation and Western Carolina University's Center for the Study of Free Enterprise, will feature Bonneau and several academic critics.

    You can register here for the event, at Campbell University School of Law. There's a fee for lunch. If you're interested in the future of the state's judiciary, and why the way we choose judges matters, be sure to join us.