Aug. 13, 2001
It's Time to Make the Right Call on Judicial Elections
By J. Barlow Herget
RALEIGH - Pretend that umpires are hired by Major League Baseball based mostly on how much money they pay the Commissioner for the job. And you’re a ball player who has been asked to contribute to three or four of these umpire candidates.
You give $100 to each and two of them get the job. Two other, different umpires, to whom you didn’t contribute, are also hired. All of these umpires know about your contributions.
How are you going to feel as a batter when the fellow behind the plate is one of those umps to whom you didn’t give money? And what are you going to expect from the ump who did get $100 when the count is three balls, two strikes and the pitch is coming at you, high and inside but may catch a corner of the plate?
If you are a lawyer in North Carolina (and many other states) you quickly will understand the dilemma of the batter in the above, ridiculous story. And if you are a judge, you will sympathize with the umpire.
Every election, North Carolina lawyers are solicited to give political contributions to the men and women who are running for judicial office. According to the N.C. Center for Voter Education, in the 2000 Election almost two-thirds of the contributions to state Court of Appeals candidates came from attorneys. Almost half the contributions to state Supreme Court candidates came from attorneys.
The judicial candidates themselves cannot directly ask for the money, but the people in their campaigns do. Unlike giving money to umpires, this is legal. It borders on the unethical and it clearly is unseemly.
But haven’t we always elected our judges in North Carolina? And don’t we have a fair and impartial judicial system comprised of honest and respected judges?
The answer to both questions is yes. We do elect our judges and by and large, we have good and honest people on the bench. But, as noted by Paul Carrington, a former Dean of the Duke Law School, for most of the 20th Century judicial candidates rarely campaigned for their positions in partisan elections.
North Carolina was a one-party, Democratic stronghold, and most judges were appointed to their positions and then elected in subsequent elections. Their campaigns, if they faced opposition, consisted of paying a filing fee, printing up hand-cards and making some obligatory campaign appearances.
In the past 25 years, however, the political landscape has changed dramatically. No one party has a free-ride today, and once decorous judicial elections increasingly are partisan, contested races.
Judicial candidates, unless they have personal wealth, have organized campaigns similar to other elected candidates and have had to spend more and more money. A July report from the American Bar Association’s Standing Committee on Judicial Independence concluded, "the cost of judicial campaigns is escalating."
Former Chief Justice Henry Frye, a Democrat, raised and spent over $900,000 in his race and he lost. He is the exception in that most election winners are those who raise the most money. A candidate for the state Supreme Court, based on recent elections, can expect to spend $200,000 to $300,000 to be a contender.
Lawyers and judges alike generally despise the current system. Chief Justice Beverly Lake, Jr., a Republican, says, "It’s the most distasteful aspect of politics to me. I like getting out and meeting people, but I do not like having to raise money. It1s not something I think is good for the judiciary." Voters, too, worry about the trend. The ABA Committee also found "a pervasive public perception that campaign contributions influence judicial decision-making."
In Texas, a sharp increase in campaign funding showed that the result was more than perception. Special interests stepped up contributions for Supreme Court candidates and over a short period of time, the Court1s direction changed. Dan Lambe, executive director of Texas Watch, a consumer advocacy group, says, "In Texas, the wealthy special interests haven't bought individual cases. But they have bought a philosophy."
The North Carolina General Assembly is debating two bills this summer that would change the electoral process for appellate judges.
The Senate is considering a bill that will use funds raised from lawyer’s licensing fees that will be available to candidates for the Supreme Court and Court of Appeals. The House is considering another, similar bill. Both would introduce public financing for a very small number of elections, seven Supreme Court justices and 15 Appeals Court judges.
The legislation deserves serious consideration. If approved, it would give North Carolinians a real but limited test for such campaign finance reform. The current system, like player-financed baseball umpires, isn’t the way the game should be played.
Barlow Herget is a businessman, writer and served two terms on the Raleigh City Council.
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