A Fair Way to Judge Our Judges

By Chris Heagarty
Published: Sep. 3, 2007

RALEIGH - People say they want fair judges, but most often what they really mean is that they want a judge that would rule in favor of the side of an argument they support.

The true duty of our judges is to be guided by the Constitutions of our nation and state, by the common law of previous judicial decisions and by the laws enacted by Congress and the state legislature. While the idea of being guided by the Constitution might sound like it would be popular, all it takes is one case where a judge must uphold the constitutional rights of someone accused of a horrible crime or must uphold a law that is unpopular but constitutionally valid, and the judge becomes public enemy number one.

Judges and justices facing election in our state will most likely be judged themselves by how popular their rulings are, not how dutifully and unwavering they were in following the Constitution.

What impact, if any, does the prospect of facing angry voters have on a judicial decision?

Former California Supreme Court Justice Otto Kaus summed up this quandary when he wrote that deciding controversial cases while facing re-election, and trying to ignore the political consequences of a highly publicized decision, was like trying to shave in the morning while ignoring a crocodile in your bathtub.

Voters have said that they don’t know enough about judicial candidates and often fear that candidates are being elected for reasons other than their qualifications. How should voters evaluate judges? What is fair when deciding whether to keep a judge in office or whether to send him or her home?

The State Board of Elections publishes a nonpartisan judicial voter guide featuring the candidates for the state’s Supreme Court and Court of Appeals, paid for by the check-off box for the Public Campaign Fund on your state tax form and fees on attorneys’ licenses. The guide provides voters with information about the candidates’ backgrounds and endorsements and includes personal statements from each contender about their campaigns.

What the guide doesn’t tell you, though, is whether or not an incumbent judge has done a good job. Perhaps you can piece that together based on who endorsed them and what the endorsements said, but right now there is no objective source of judicial performance evaluations to guide voters in choosing whether to retain or reject judges already on the bench.

That is about to change.

The North Carolina Bar Association has announced a program to survey the performance of judges based on their integrity, competence and temperament. It is a powerful step forward, and one long overdue.

One couldn’t blame the Bar Association if they were a little apprehensive about grading the judges -- many attorneys will face these same judges receiving the evaluations, and it would be all too human to dread facing a judge who received a poor rating, expecting them to seek a little payback. That’s what makes this bold move all that more worthy of praise.

Providing voters with comprehensive evaluations of judicial performance, including such attributes as knowledge of the law, clarity of decisions and freedom from bias or prejudice against any person or group will be a true service to voters and will greatly improve judicial selection in North Carolina.

These evaluations won’t satisfy everyone. For those that care only about conviction rates -- despite evidence or constitutional rights favoring the defendants -- or about only one side of hot political issues, campaigns driven by special interests and judicial activists will still influence their vote.

But for those of us who really care about how well a judge or justice has lived up to his or her sworn duties to protect and defend our Constitution and laws, and to stand up to political influence, these evaluations are a big step in the right direction.