Feb. 19, 2002
Judicial Elections: No Tea Party
By J. Barlow Herget
RALEIGH - In Lewis Carroll’s “Alice in Wonderland” the view of the world is seen “through the looking glass”. The fine line between truth and fiction is blurred, and the comic and absurd blend together. It’s an appropriate metaphor for some of the emerging troubles in how North Carolina conducts its judicial elections.
While many candidates already have begun campaigning, especially those running for the U.S. Senate and other statewide races, the 2002 Election campaign doesn’t start officially until the filing deadline passes in early March. Then we voters begin to focus on who stands for what.
Except for one group of candidates: Judges.
Judicial candidates in North Carolina must run for office just as do governors, legislators, county commissioners, sheriffs and others. But none of the candidates for these other offices faces the “Mad Hatter” rules that govern judicial campaigns.
Judicial candidates must comply with state election laws and legal canons. These canons are a code of ethics that govern judicial behavior, even on the campaign trail. These restrictions turn judicial electioneering into a dance with no steps.
Judicial candidates, for example, do not propound their positions on the issues of the day like other politicians. They do not tell you their views on Social Security reform. They cannot offer opinions on school re segregation. Or the death penalty. Or the right to bear arms. Or abortion.
They do not campaign on such matters because the canons prohibit them from pre-judging issues that may come before them in court. A lawsuit challenging the canon permitted judicial candidates some leeway, but so far, they have been reluctant to risk violating the canon.
Similarly, they cannot ask you for a campaign contribution. Such solicitation taints the appearance of fair and unfettered justice. Instead, their friends and campaign manager must do the begging. The candidates, however, can thank you. Go figure.
These rules are not without merit. Who would want to go before a judge in a death penalty case if the judge had campaigned as a champion of capital punishment? And how comfortable would you feel with that judge who had personally asked you for campaign money if you had refused him?
Yet, the rules reduce judicial candidates to virtual POW status: they can hardly tell you more than their name, rank and serial number. And the names of their spouses and children.
Given such a limitation on their comments and calls for cash, judicial candidates have tried some fancy campaign side-steps. In 1986, Republican political strategists tried to circumvent the restrictions on judicial campaigning to help Chief Justice Rhoda Billings. She was Gov. Jim Martin’s new appointee to the position. Her formidable Democratic opponent was another Supreme Court justice, James G. Exum, Jr., who had been a state legislator before his appointment to the bench.
Billings ran a dignified, typical judicial campaign. The creative GOP strategists, however, ran a separate campaign using surrogates who played hardball against Exum, attacking his record and arguing he was soft on crime. Exum and others cried foul.
To her credit, Billings had no part in the surrogate campaign and disavowed their tactics. They finally gave up, disappearing, much like Alice in Wonderland’s Cheshire cat. Exum won the race.
The most notable, recent gambit was District Judge Jim Martin’s effort to take advantage of the electorate’s notorious ignorance about judicial candidates. Partly because of the restrictions on campaigning, judicial candidates are the great unknowns on the ballot, and voters, especially in primary races where party affiliation is no help, commonly depend on name recognition in making their choices.
Judge Martin, a Democrat from Pitt County, rode to victory in the 1998 primary race for a seat on the Supreme Court. He knew "Jim Martin" (thanks to the Gov. Jim Martin mentioned above) was a recognizable name.
He encouraged the mistaken identity by duplicating the former governor’s red and white colors on his campaign cards and used the exact same type face. It worked. He won the primary after which the media provided him with a potful of publicity -- mostly negative. He lost the general election to another famous “Martin” -- Judge Mark Martin, who, to his credit, did not pretend to be the NASCAR driver of the same name.
More serious shenanigans await us. Judicial elections elsewhere have employed 30-second attack ads that demean the candidates and undermine confidence in the judiciary.
Two new surveys released on Valentines Day by the non-profit Justice at Stake Campaign in Washington reported that a large majority of both voters and judges nationwide are "deeply concerned about the growing impact of money and politics on fair and impartial courts." The survey of sitting state judges found that a majority -- 55 percent -- think that the tone and the conduct of judicial campaigns has gotten worse over the past five years.
And a new report from the Brennan Center for Justice shows that judges are increasingly being forced to raise money like politicians. The report found that state Supreme Court candidates raised 61% more money in the 2000 elections than in the 1998 contests. That kind of cash is only going to spur more judicial campaign shenanigans and attack ads.
These are real concerns. The last thing we want is to end up with is a “Queen of Hearts” judicial system, with judges yelling -- “Off with their heads!” -- just to please voters or contributors, thus precluding fair and impartial courts.
Barlow Herget is a writer and former member of the Raleigh City Council.
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