Oct. 28, 2003
New Code of Conduct for Court Campaigns Draws Protest
By J. Barlow Herget
RALEIGH - A few months ago, I was interviewing a local businessman who had come here from Lebanon. When he left there in 1974, his country was beginning to fall into anarchy. The guys with the guns were making the law.
When I asked him what most impressed him about America, he mentioned things like the wealth and the abundance of goods, but he struggled to describe what he admired most.
It was something more abstract. I finally figured out he was talking about our system of and respect for justice.
He believed that he would get a fair shake from our judicial system if he ever found himself in court. He had confidence that the judge would be fair and impartial.
I agree. In North Carolina, we have a long tradition of judicial probity. While judges are being indicted in other states and their political campaigns run wild, North Carolina took steps to guard against dirty politics when it approved the Judicial Campaign Reform Act in 2002. The Act allows citizens to help reduce the role of money in judicial elections through modest publicly funded campaign financing.
There’s another tradition that has enhanced our judiciary’s reputation for fairness. Judicial candidates have been discouraged by canon (professional rules of conduct) from speaking out on issues about which they might later have to rule.
This practice makes sense if judges are to protect the appearance of impartiality. For instance, if you have a beautiful red-haired daughter who is in the Miss North Carolina Pageant, you’re not going to feel comfortable if you know one of the judges declared on TV that he can’t stand redheads.
It’s even more serious in a court of law. A judge who campaigns loudly that legal abortions are equal to murder or that handguns should be outlawed is not going to be trusted to render an unbiased ruling in cases involving abortion or gun control.
Unfortunately, critics say this rule limiting campaign comments runs smack into a candidate’s freedom of speech to say what he wants to get voters attention. Last year, the U.S. Supreme Court in “Republican Party of Minnesota v. White” ruled in favor of freedom of speech for judicial candidates.
Soon afterward, the N.C. Supreme Court issued new rules of conduct for sitting judges and candidates. Under the new code, judicial candidates, according to one news report, can now endorse political candidates, make political promises, and pledge to make their courtrooms "friendly" for certain special-interest issues.
But the new code doesn't stop there. It also eliminates most of the rules that kept judges from asking for campaign money. Under the new rules sitting judges can ask lawyers and others directly for campaign money, something that was not addressed by the "Republican Party of Minnesota v. White" case.
It is these new rules that have drawn protests from the N.C. Association of District Judges. At its recent fall meeting, these judges adopted a resolution objecting to the revised code. The resolution read that the code “severely compromises the appearance of judicial impartiality and fosters the public perception that politics play an essential role in matters of judicial conduct.”
Exactly.
To his credit, Chief Justice Beverly Lake, Jr., said that the high court might take a second look at its new code. The reason the new code went so far, he and others on the court say, is to head off potential lawsuits based on the U.S. Supreme Court rulings. However, a good jurist like Lake knows that perhaps there's some middle ground.
North Carolinians, according to a survey by the N.C. Center for Voter Education, already have reservation about judicial campaigning. The Center found that 78 percent of those polled had a growing suspicion that judges’ opinions are influenced by campaign contributions. Allowing judicial candidates to directly ask lawyers or special interest groups for large contributions is unseemly and can only add to the public’s fear that justice may be for sale.
Yet, despite this, North Carolina is among very few states if not the only one, according to Georgetown University law professor Roy Schotland, to turn loose the campaign dogs.
As long as we elect our judges -- and North Carolinians overwhelmingly want elected, not appointed, judges -- we are going to have this tension between free wheeling campaigning and restrained judicial elections. That’s the realty of judicial elections.
The trend nationally is towards more expensive and less distinguished judicial campaigns. But in North Carolina the recent Judicial Campaign Reform Act promises to reduce partisanship and special interest influence. “Our system has worked,” says Appeals Court Judge James Wynn who has run for office more than once. Why encourage candidates to do the opposite?
My immigrant friend lauds our fair and impartial judiciary. The new codes of campaign conduct threaten to change that reputation.
Barlow Herget has consulted on a number of judicial campaigns and is host of "State Government Radio Insider" on WDNZ in Raleigh.
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