Dec. 18, 2001
Getting Politics Out of the Courtroom
By J. Barlow Herget
RALEIGH – There are at least two places where you probably don’t want to talk about politics. Your family Christmas dinner with the brother-in-law you see only once a year is one such place. The other is in a court of law.
At a recent forum sponsored by the non-profit North Carolina Center for Voter Education, Sen. Allen Wellons, D-Johnston, told the audience that the state enjoys an impartial and honest judiciary. And he wants to keep it that way.
That’s why Wellons and Sen. Wib Gulley, D-Durham, have sponsored legislation that would change how we select judges in North Carolina, hopefully reducing the influence of politics. Like many states, North Carolina elects its judiciary, and the trend in judicial elections tracks those for other elective offices. The races increasingly cost more money, and accompanying campaign advertising increasingly portrays the judiciary in negative terms.
For years, reformers here argued for some kind of merit selection of state judges. The model for such a system is the Missouri Plan that allows the governor to appoint judges, much like the President nominates federal judicial candidates for confirmation -- or rejection -- by the Senate. However, unlike federal judges, these judges do not serve for life and must face the voters for re-election at the end of their term.
North Carolina leaders such as former Chief Justice Burley Mitchell have considered similar plans, but they have found that citizens do not want to give up their constitutional right to elect judges. Survey after survey show that voters overwhelmingly will defeat any change to an appointment system.
Those concerned about maintaining judicial integrity such as Wellons, Gulley and Mitchell have turned their attention to other solutions. They are joined in this effort by the American Bar Association (ABA) and it1s incoming president, North Carolina1s own A. P. Carlton, a Raleigh attorney.
Carlton, the keynote speaker at the N.C. Center for Voter Education’s (NCCVE) forum, believes that "state judiciaries are under attack." He led a national commission to examine recent judicial elections, which issued a report in July. The study found escalating campaign costs and "a pervasive public perception that campaign contributions influence judicial decision-making."
Cynics might respond, "So, what else is new?"
Mitchell and others such as former U.S. Senator Robert Morgan, chairman of the NCCVE, maintain that unlike candidates elected to executive and legislative branch offices, judges are held to a higher standard. They are expected to be above politics.
Indeed, one of the best compliments you can give a judge is that he or she is fair and impartial. Likewise, judicial candidates are somewhat restricted from speaking out on issues that may come before them on the bench and even from asking personally for campaign contributions.
The expectation is for judges to follow the rule of law rather than popular political agendas. "Courts by nature," argues Mitchell, "are anti-democratic. They should and will defy the opinions of a large majority of the populace." You need only look at the courts’ role in the early years of the Civil Rights movement to see Mitchell’s point.
This is why Mitchell, Wellons and Gulley have called for non-partisan judicial races. In the four levels of the state’s judiciary (District, Superior, Appeals, and Supreme courts), only the Superior Court races are non-partisan, though in the 2002 election District Court races also will become non-partisan.
While there is no guarantee that non-partisan elections will reduce rising campaign costs, a study by the non-profit Justice at Stake Campaign in Washington revealed that partisan elections cost far more than non-partisan and retention elections. (A retention election is when a judge campaigns to retain his seat but faces no opposition.)
Research by Justice at Stake, a Washington-based non-profit group shows that partisan races are far more expensive. The average campaign cost for 329 judicial candidates in the 2000 Elections was $380,724. In 269 non-partisan races, the average was $107,388.
Partisan judicial campaigns last year in Ohio and Michigan gave voters, lawyers and judicial candidates a look at what could be coming to North Carolina if nothing changes.
In one advertisement, a corporate big shot was shown with three of the candidates in his vest pocket. Another 30-second spot suggested a sitting judge was taking payoffs, an allegation that caused that state’s Bar Association to come to the candidate’s defense.
Such ads, says NCCVE Executive Director Chris Heagarty, damage the credibility of the courts and encourage citizens to believe justice is for sale.
The 2000 Election in North Carolina posted the state’s first million dollar judicial race, and campaign consultants estimate that to win a seat on the Supreme Court in the future, a candidate will need at least $200,000 to $300,000, just to be competitive. By getting politics out of the courtroom we may be able to reduce that number.
Barlow Herget is a businessman and former member of the Raleigh City Council.
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