President's Message

Posted by: F. Williamson on Dec 1, 2016


On Judicial Selection
by F. Lane Williamson
“Judges are not politicians, even when they come to the bench by way of the ballot.”
Chief Justice John Roberts, Willams-Yulee v The Florida Bar, 135 S. Ct. 1656, 1662 (2015)
John Roberts is a very smart guy, but that statement is: (a) really stupid; (b) incredibly naive; (c) wryly ironic; or (d) all of the above. Anyone who has ever been a judge, run for judicial election or sought a judicial appointment clearly realizes that all judges are politicians, like it or not.
Due to publication deadlines, I am writing this column a few days before an election that will decide a nominally “non-partisan” North Carolina Supreme Court race that was supposed to be a retention election before that procedure was held to be unconstitutional, several explicitly partisan Court of Appeals races, no superior court races, and several “non-partisan” (well, maybe one of them is actually non-partisan, but that’s the exception) district court races. Locally, none of our superior court judges face a contested election, for which I am sure they are all grateful. And of course, there is a presidential election that will indirectly decide at least one and maybe more than one U.S. Supreme Court nomination and a senatorial election that may help determine whether any Supreme Court nominee actually gets confirmed during the coming quadrennium. In short, it’s a messy time for the judicial branch, both for the federal system and for the state system. 
By the time you are reading this, the election results will be in. My congratulations to the winners of the judicial elections and my condolences to those who were runners-up (I hate to call any judicial candidate a “loser”). 
This column is being published in the midst of the holiday season. No doubt many of you will at some point watch for the umpteenth time the Christmas classic “Miracle on 34th Street.” Not only does that movie prove there really is a Santa Claus, it also directly makes the point that judges are politicians. In the chambers scene after the lawyer Fred Gailey has attempted to prove that his client Kris Kringle really is Santa Claus, the presiding judge’s campaign manager Charlie Halloran (played by William Frawley, later to gain sitcom immortality as Fred Mertz on “I Love Lucy”) lays it out for the judge:
But you go ahead Henry, you do it your way. You go on back in there and tell them that you rule there is no Santy Claus. Go on. But if you do, remember this: you can count on getting just two votes, your own and that district attorney's out there.
To which the judge shakes his head and replies “The DA’s a Republican.”
The point is, whether judges are appointed or elected, it’s always through a political process. If you only get to be a judge through political maneuvering, then that makes you a politician, notwithstanding that you’re appointed rather than elected. Justice Roberts, who like every Supreme Court nominee had to run through a gauntlet of executive and legislative vetting to get where he is, should know this as well as anyone. Didn’t he notice that all of the Republican senators voted in favor of his nomination, whereas half the Democrats voted against him, for no other reason than he was appointed by a Republican? 
While appointing judges has always been political, it hasn’t always been so partisan. It’s hard to believe now that as polarizing a figure as Justice Antonin Scalia was approved unanimously by the Senate in 1986 by a vote of 98 to 0. If there were space to do so, I’d run through the shameful history of the U.S. Senate’s rejection and unconscionable delay of the confirmation of qualified nominees to the Supreme Court that in modern times runs from the rejection of Clement Haynsworth in 1969 through the current non-consideration of Merrick Garland. Suffice it to say that—like other obstructionist political tactics—Democrats appear to have invented it, while Republicans have honed it to a fine art. Both parties share equal blame for the stalemate now facing the Supreme Court and the very real possibility that—as explicitly threatened by our own Richard Burr, among others—the Senate will not confirm any Supreme Court nominee for at least the next four years. 
In North Carolina, judges with a few exceptions (those in business court and the remaining special superior court positions that have not yet been sunsetted by the General Assembly but probably will be) are elected. Why is that so?  
The original North Carolina Constitution of 1776 provided that the superior and supreme court judges were appointed for life by the General Assembly so long as they were Protestants and observed “good behaviour” [Sic]. At the time, no state elected its judges. Judicial service in this state was part-time, even on the Supreme Court (cynics among you, noting the rarity of actual full opinions compared to the “per curiam” affirmances  and “discretionary review improvidently allowed” decisions emanating from the Supreme Court, probably still view being a North Carolina Supreme Court justice as a part-time gig).
The Constitution of 1868, passed by the post-Civil War Republican coalition of carpetbaggers, scalawags and freed slaves, debated judicial selection for all of one day, but nevertheless considered three approaches. These were the old way of legislative election, the federal-like model of gubernatorial appointment with confirmation by the Senate and popular election. The arguments then for and against each approach are substantially similar to what they are now. In any event, the election method with 8-year terms was chosen and still is what prevails in this state, having been renewed by the Constitution of 1971, with the addition of the provision for the election of district court judges for four years. North Carolina is one of 38 states that choose at least some of their judges by popular election.
Notwithstanding that state judges are elected, it is nonetheless the case that many judges are initially appointed to vacancies by the governor and then have to run in the next general election. So really what we have is a hybrid sort of system that may entail an initial appointment followed by an election, so that to become a judge one might have to first ingratiate oneself with the governor and then in turn ingratiate oneself with the voting public before being assured of even one term on the bench. If you, sir or madam, can successfully navigate that course, you are most assuredly a politician. 
There is an interesting historical parallel between the period of 1868 to 1900 and today regarding the revolving door of membership in the judiciary. In the late 19th century, the Republicans and Democrats vied for control of the state. Judicial elections were partisan, and judges were frequently turned out of office. When the Democratic Party took firm hold of the state at the turn of the 20th century, judicial elections were not often contested and judges for the most part could count on having a judicial “career” so long as you were a Democrat and didn’t “misbehave,” whatever that might have meant. The situation began to change around the mid-1980s when Governor Jim Martin appointed three Republicans to the Supreme Court. Though all three were turned out in the next election, the trend toward partisan competitiveness in judicial races was on. Now as a purple state, judicial elections are often hotly contested and most judges have to live with the specter that one’s current term may be one’s last. So much for the security of a judicial career. And so much for an experienced and stable judiciary. 
That’s it for the history lesson, for which I am indebted to a presentation by Dean Martin Brinkley of the UNC School of Law entitled “Judicial Selection in North Carolina,” available at
I won’t bore you with the familiar arguments for why popular election falls short of the optimum as a method for judicial selection. A couple of examples should suffice. In the last election, a superior court candidate with no other credentials than a law license garnered over 40 percent of the vote against our Senior Resident Superior Court Judge. A few years before that, a candidate with the same lack of credentials, but bearing the last name of a large, locally-based department store chain (Belk) beat an incumbent district court judge saddled with the last name of a defunct, Richmond-based department store chain (Thalheimer—well, almost, Thalhimer’s Department Store dropped a letter from the name). At least the latter result was eventually rectified in part through removal by the Judicial Standards Commission and the North Carolina Supreme Court.
Justice Roberts certainly has a point to make when he says that judges are “umpires” rather than players in the political game. My way of making somewhat of the same point is more laden with sarcasm: it is a legitimate rationale to prefer a drooling troglodyte with a room service IQ from your preferred political party as a legislator over a Lincolnesque statesman from the other party, since the former is more likely to help implement your ideological goals. For a judge, however, most lawyers agree that integrity, knowledge, intelligence, independence and fairness are all far more important attributes than party affiliation. But it is party affiliation which is most important to the public, and all too often that’s the only bit of information a voter has about a judicial candidate. 
The situation is exacerbated by the proliferation of PAC money in judicial races, where ads for a candidate may run without the approval of the candidate. This has led to unseemly attack ads and ads that distort a judge’s record by focusing on one decision, as well as some that are just idiotic. Remember the banjo strumming hillbilly chanting the mantra of “tough but fair” (a phrase more aptly descriptive of a Golden Corral steak than a judge) on behalf of a certain Supreme Court Justice?
But what about “merit selection” you may ask. Forget it. Ain’t happening, despite the constant Sisyphean efforts of the North Carolina Bar Association and others over the last 45 years. That would require amending the North Carolina Constitution to take away voting power from the public in order to give appointment power to some Brahmin class of benevolent overseers to determine who gets to hold judicial office. Try selling that one. It would also require politicians and political parties to give up a smidgeon of control over political patronage. One could sooner pry a dead rat out of a hawk’s talon. Not only that, but we are kidding ourselves if we think that a merit-selection system would be substantially less “political” than what we have now. 
I am sometimes asked as a former judge who went through both an appointment process and an election what I believe to be the best way to select judges. My astute, scholarly response is usually thus: “they all totally suck.” Notwithstanding that, we are lucky in this state to have as high a quality of judiciary as we do, a result that I attribute to a few good lawyers who are also natural politicians and a lot more who are willing to at least pretend to be politicians even when they hate every last minute of it.  
I hesitate to discuss too much of my personal experience lest I come off as a resentful and bitter whiner. I’ll just say that having gone through the appointment process with two administrations representing both major parties and a feckless election attempt that was doomed from the start (in a four person race for two seats, two of the others were each party regulars with the strong backing of their respective parties), I have metamorphosed from a moderate political cynic into an abject political cynic. For the full story, you’ll have to buy me a beer or two. I warn you, though—it’s not an inspiring tale. 
Don’t get me wrong. I loved being a judge and appreciate the opportunity given to me to serve as one. I would probably still be on the bench if I weren’t so utterly inept at the political side of the job. Perhaps the best way to select judges would be by lottery—take politics out of it completely. Then everybody who wanted to could have a chance at the same opportunity I had. 
Just one personal anecdote to illustrate how absurd actually running for judge can be. I was at a polling place doing my best to chat up the voters waiting in line when one of my opponents showed up and started giving out little jars of jelly with the label “Preserving Justice.” I thought to myself two things: one, “If it takes stunts like that to get elected, then I am way out of my element;” and two, “Can’t you people see that’s not real fruit preserves, it’s just colored gelatin!”
Oh well, maybe Justice Roberts is right in some sense—judges are not politicians, or at least they are far better at being judges than politicians. Thank goodness for that.