Aug. 21, 2006
Avoiding Errors in Pitching Judicial Campaigns
By Chris Heagarty
RALEIGH - “Big Time Supreme Court Debate! Showtime!”
That’s how the N.C. Agribusiness Council promoted a recent candidate forum at their annual membership meeting.
The crowd probably expected a debate of the candidates' views on agricultural issues, especially with prepared questions about farmland preservation, immigration, and protecting the American food supply against terrorists.
What they expected and what they got may have been two different things. Rather than a lively debate on issues that you might expect discussed by candidates for commissioner of agriculture or Congress, most of the judicial candidates instead stressed their qualifications and experience -- and maybe some of their judicial philosophy -- and avoided taking positions on state and federal policy matters.
Is this a case of candidates deflecting answers to tough questions or is it a case of candidates respecting the principle that judges should not make the law, only interpret it?
As representatives of the largest economic forces in the state, the leaders of the Agribusiness Council are savvy political veterans and know the role of a state Supreme Court justice, but they may have raised expectations that their members should not have had.
They know that a state Supreme Court justice has no real power over U.S. trade policy, such as setting quotas or tariffs on agricultural imports, nor any real power over national immigration policy. In fact, many of the most pressing issues facing agribusiness today are federal issues.
There are still many important state issues concerning agriculture and agribusiness, though, where a state Supreme Court justice could have an impact by deciding policy issues challenged in court. But in these cases, the justices are bound by the oaths they swore upon accepting their office to resolve disputed cases by following the rule of law, and the constitutions of the state and nation.
Thus, the justices, if they are true to the oath they swore, are going to make their decisions based on the law before them, not on their own personal beliefs. They may not like a law or agree with a law, but they should respect their role -- interpreting the law and making sure it was correctly applied.
Senior Associate Justice Mark Martin of the Supreme Court explained it this way, according to press accounts from the dinner.
"Judges should not play a proactive role in this process," said Martin, the incumbent in the race. "We are there to call the balls and strikes."
Candidates that come to the court proactively taking positions on cases imply that they would legislate from the bench and assume the power of lawmaker rather than judge. That is what we call a judicial activist.
It is the job of legislatures to set the rules and of judges to decide whether the rules are followed. When judges talk about their personal political opinions, they are either implying how they’d rule on a case before they’ve even heard it, which is wrong, or they mislead voters and create a false impression of what judges do.
A judge should be fair and impartial, respecting the law above personal feelings or political thoughts. A judge who brings a political agenda to the court cannot rule fairly. But even a judge who has no intention of letting his or her own personal beliefs cloud how to decide a case runs the risk of misleading voters when he or she discusses political issues.
For example, a judge may state that he personally supports the death penalty. However, he may review a case where the law was misapplied. Previous court decisions on the issue and a contemporary reading of the state constitution may make it clear that the death penalty should not have been applied in that particular case. But when the judge follows precedent and the rule of law and throws out that death penalty verdict for a lesser charge, the voters may think the judge is soft on crime, or lied to them during the campaign.
If the law is bad, the legislature should change the law. And a judge may privately vote for legislators to do just that. But in order to maintain public confidence in the impartiality of the courts, judges shouldn’t be cheerleaders for particular issues.
Please don’t think I am picking on the Agribusiness Council. I think they were not so much looking for answers on topics upon which judges might be likely to rule; they likely just wanted to help the audience get to know the candidates and their legal philosophies.
But trying to talk about these philosophies, while avoiding political issues that could tarnish the candidates’ impartiality, is a pretty narrow strike zone for any judge.
An umpire might be able to attend a tailgate party for the home team ahead of time, and still go out and call the game fairly. He might say that his personal support of one team won’t compromise his fairness. But we know that the other team would never believe it, so we don’t allow it.
Doesn’t the preservation of public confidence in our courts deserve at least as much protection as the credibility of our baseball umpires?
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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