Jun. 26, 2006
How Should Voters Judge their Judges?
By Chris Heagarty
RALEIGH – Just because something is legal, does that make it right?
That's a question voters may want to ask of this year's candidates for judge. And the answer might be in the form of deeds, not words.
On the one hand, a slew of influential special interest groups flood judges' mailboxes with questionnaires aimed at praising or pummeling them based upon their personal beliefs on hot button issues, baiting them to promote an agenda.
On the other hand, how confident can the public be in judges who have promised how they will rule before they hear even a minute of evidence in a case? It's a tricky situation, requiring a judicial candidate to step nimbly along the campaign trail.
Traditionally, judicial candidates were restricted from leaping into the political storms bellowing in the public square.
North Carolina has let judicial candidates announce personal views on issues, something other states had generally prevented, since the late 1980's. However, most candidates refrained from doing so because they didn't want to confuse anyone that might think that a personal belief was a promise of how they might rule in a case.
Voters want information about candidates, but most voters also want a judge who is fair, and who will judge each case independently on the evidence, not on their own beliefs. They want judges who will uphold the Constitution. They do not want judges who “legislate from the bench” or who use their judgeship to push an activist agenda.
But a 2002 decision by the U.S. Supreme Court made it clear that the right to free speech mandates that judicial candidates be allowed to declare their personal views on any topic they choose, no matter how volatile or likely to come before their bench, and subsequent lower court rulings suggested judges might be able to go even further.
Then-North Carolina Chief Justice I. Beverly Lake, Jr., said the ruling made clear that “if you are going to have judicial elections, you cannot deprive the candidates of their constitutional right to participate in the political process.”
But while candidates for the court may be just as free to say what they will as those vying for the state House or Governor's Mansion, their prospective office requires that they be more prudent in how they exercise that right.
Indeed, if judges are no different from lawmakers and governors, why are they the only ones who wear robes to work?
The truth is, the public comments of judges can undermine their credibility and sabotage their ability to do their job in a way that other politicians need not fear.
Former U.S. Supreme Court Justice Felix Frankfurter illustrated this when he observed, “The Court's authority – possessed of neither the purse nor the sword – ultimately rests on sustained public confidence in its moral sanction.”
That confidence is based on the belief that judges will decide cases fairly, guided only by the law and not by their own whims and wishes.
A study commissioned last year by the nonpartisan N.C. Center for Voter Education found that 55 percent of Tar Heel voters believe that “judges too often make decisions based on their own beliefs, rather than on the Constitution and the laws passed by the state legislature.”
No doubt that undesirable number would rise if North Carolina's judicial candidates began campaigning on their own personal agendas.
This spring, I hosted a series of interviews on State Government Radio with nearly every candidate running in the May primary election for the N.C. Supreme Court and N.C. Court of Appeals.
What impressed me was that all of the candidates – whether personally conservative or liberal – preferred to keep their private views separate from their public service as a judge. Even if a few hinted at a personal opinion or philosophy, they all stressed following the rule of law.
I would argue that it's not that these candidates are trying to deceive the public by hiding their personal beliefs. It's that they correctly hold that judges should leave their own opinions at the courthouse steps and follow the Constitutions of North Carolina and the United States
It is very true that voters need information about judicial candidates before they cast their ballot. But special interest questionnaires designed to push candidates into a political pigeonhole are not the way to go.
The best candidates for judge are the ones that will exercise great wisdom and prudence. It may be legal for them to campaign on an activist agenda, but I would urge voters to judge the candidates by what they do, not just by what they say.
It may not make for the explosive campaigns we see for senator or governor, but leaving the agendas outside the courtroom makes for fair courts worthy of the public's confidence.
Chris Heagarty is the executive director of the N.C. Center for Voter Education, a Raleigh-based nonprofit and nonpartisan organization dedicated to improving elections in North Carolina.
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