Jul. 18, 2005
Survey Finds Change in Attitude on Judicial Selection
By J. Barlow Herget
RALEIGH – Former N.C. Supreme Court Chief Justice Burley Mitchell once sat on a blue-ribbon commission to study the judicial selection process in North Carolina and to make recommendations.
Mitchell's group did their work and, like so many similar study commissions, made a sensible suggestion that the governor should appoint judges.
There were some checks and balances in the recommendation:
The governor would select candidates nominated by a high-level commission. There would be legislative confirmation. And voters would get to vote on the judge after he or she had served a term in a “retention election.”
Mitchell, who was no stranger to elective politics, recognized after a while that the recommendations were going nowhere. Neither Gov. Jim Hunt nor legislative leaders wanted to champion a system that would swap appointment of judges for election of judges, no matter the safeguards.
Surveys afterward confirmed the politicians' instincts. North Carolina voters by an overwhelming majority wanted to continue to elect their judges.
Well, to borrow from Bob Dylan, it seems that the times, they are a changin'.
A June survey sponsored by the North Carolina Center for Voter Education finds that voters are having second thoughts about judicial elections.
A very respectable 65 percent agreed that because so few people were familiar with judicial candidates, “judicial appointments will ensure more qualified judges who would face a more stringent screening process based on merit, rather than fundraising ability.”
That's a mouthful of qualifying clauses. But it shows that voters are willing to consider something other than elections to select judges.
“I was surprised,” says Luke Bierman, executive director of the Emerging Issues Institute at North Carolina State University.
A former executive with the American Bar Association, Bierman has followed other states' efforts to move to a merit selection system.
“A number have tried in the last five years, none of which were successful,” Bierman notes. “This survey is pretty remarkable and consistent with North Carolina looking ahead and doing things innovatively.”
Voters earlier had expressed misgivings about the current elective system for judges. A NCCVE survey in 2002, for example, found that a majority believed campaign contributors had too much influence in the state's justice system.
These concerns helped persuade legislators to adopt the 2002 Judicial Campaign Reform Act. It introduced public financing to appellate court elections. The new, voluntary system was tested in the 2004 judicial races.
Twelve out of 16 appellate court candidates signed up for public financing, and taxpayers voluntarily marked their tax returns for the state to set aside money for a campaign fund and voter's guide.
By and large, the system worked. While appellate court candidates in other states were setting records for excessive spending and lowering standards with scurrilous advertising, North Carolina's candidates limited their spending and maintained an acceptable, judicious decorum in their campaigning.
According to the June survey, voters like the new process.
“A strong majority of nearly 75 percent of voters,” reports an NCCVE statement, “favors North Carolina's system of public campaign financing for judicial elections.” That's a hefty endorsement.
It's a good guess that the change in attitude about appointing judges reflects voters' evolving concerns about judicial campaigns.
Voters recognize, for instance, that they don't recognize most judicial candidates. It is no secret that more citizens know college basketball coaches than Supreme Court justices or appellate court judges.
And they're still worried about special interests buying justice. Even with a voluntary public financing system, there is nothing to stop candidates from raising large sums of money to run, or worse, for political nonprofit 527 organizations from pouring money into judicial races as they've done elsewhere.
Paul Carrington, former dean of Duke University Law School, sees the June survey as an indication that voters remain concerned about big money.
“Voters are cognizant of the amount of money being spent in judicial elections,” he says.
The June survey results shortly will get a real test in politics. Rep. Paul “Skip” Stam, R-Wake, plans to see if his fellow legislators have also changed their attitudes on judicial selection.
In a June 29 letter to his Republican colleagues, Stam wrote: “I support a new method to choose appellate judges. Twice I ran statewide as a GOP candidate for the Court of Appeals. I can testify that the vast majority of our citizens have little idea what appellate judges do nor who they are.”
He is supporting a bill that will call for the appointment of appellate judges by the governor with confirmation by the people in a retention election. Stam says, “Hopefully, this proposal could be submitted to the people for a referendum this November and will be effective in 2006.”
Merit selection for judges in this session of the General Assembly is ambitious. Supporters should remember that it took former Sen. Wib Gulley, D-Durham, almost 10 years to persuade the legislature to accept public financing for judicial campaigns.
But, this new poll shows voters ready for change now, so maybe lawmakers are, too.
Barlow Herget is a former Raleigh city councilman and writes the Follow the Money column for the N.C. Center for Voter Education.
743 W. Johnson St.
Suite E
Raleigh, NC 27603
919.839.1200