Although many of us have participated in polls recently, may I ask one more question: if you voted in one of the six races for seats on the North Carolina Supreme Court and Court of Appeals, how did you choose?
Based on the number of friends and family members who expressed bewilderment about these races, I am confident the vast majority of our state’s citizens confront this part of the ballot with minimal information — or information of a slanted and specious nature.
Our state’s political parties are filling the void. On this year’s ballot, Court of Appeals candidates had their party affiliations listed on the ballot, and they were listed in party order, with the candidate of the governor’s party appearing first. All five Republican candidates won. In the Supreme Court race, by contrast, the candidates were listed in random order without party affiliation, and the Democratic candidate won. One would not be surprised if the legislature continues to tinker with the ballot, with the goal of making judicial races ever more partisan.
Parties are also relying on television, radio, and internet ads to promote the “best in name recognition.” The dollar count is not available for the most recent election, but in spending on judicial elections for statewide races in 2014, North Carolina ranked second in the nation. These ads are often funded by groups that do not disclose their donors, and tend to feature arguably misleading sound bites about opinions the judges have written. In 2014 and 2016, the North Carolina Bar Association condemned the most widely circulated ads in the Supreme Court races — in 2014, about a Democratic candidate, and in 2016, about a Republican.
Minimal voter information, attack ad sound bites, and gamesmanship over ballot placement and labeling — these are not the ingredients for a healthy independent judiciary. Our judges’ duties are fundamentally different from those in the legislative and executive branches. Our judges must bear full allegiance to the rule of law and to our state and federal constitutions — not any political party’s platform or promises made to win votes.
The constant casualty of judicial campaigns in North Carolina is the threat to judicial independence — the public’s unshakeable confidence in a fair, impartial administration of justice, which is the bedrock of our democracy. Retired Justice Sandra Day O’Connor observed: “Judicial independence does not happen all by itself. It is very hard to create, and it is easier than most people imagine to destroy.” Alexander Hamilton — recently returned to prominence by a Broadway musical — emphasized the essential place of the judicial branch in our government, warning that limitations on the laws passed by the Congress and state legislatures “can be preserved in practice no other way than through the medium of courts of justice … Without this, all the reservations of particular rights or privileges would amount to nothing.”
As long as our state’s citizens elect its judges, we face an abiding risk to judicial independence. If we turned to an appointive system — some version of the federal model that relied on gubernatorial appointment — we would take a step in the direction our nation’s Founders believed critical to reliable checks and balances among the three branches. Just as they do when voting for a President, voters would take into account the gubernatorial candidate’s record of sound judgment in making appointments and similar decisions. A screening body, or perhaps the state senate, or both, could collaborate with the governor in an appointment and confirmation process.
To be sure, this reform would not remove all politics from the process of choosing judges. It would remove, however, all spending on judicial campaigns, all specious attack ads, and all ballot placement and labeling tactics. Most important, it would remove the risk of the public believing that those elected will serve the objectives of those parties under whose banner they have run and whose advertisements have advanced their candidacies.
We can do far better than the system we now use to select those whose daily decisions hold such importance for the lives of our state’s citizens and businesses.
Our General Assembly can provide the people of our state an opportunity—by a constitutional amendment—to choose a better way. Isn’t it time to ask our General Assembly to give us this choice?
John Wester is a lawyer with Robinson, Bradshaw & Hinson and a past president of the N.C. Bar