Judging the Judiciary
May 2010 President's Column
Patrick E. Kelly
For the most part, state court judges elected in North Carolina are competent and dedicated public servants. My personal experience in the courtroom confirms this. Yet it has always troubled me that our judges are elected, and in particular that the elections are largely supported and funded by the very lawyers and law firms who appear before the judges. My concern about process does not impugn the integrity of any judge. The process is what it is. However, most of us would agree that a process which encourages even the appearance of undue influence or favoritism does damage to our justice system by diminishing respect for the rule of law. If changes in the process can be made to make the system more fair, as well as appear more fair, shouldn't we consider them?
To be sure, there is no perfect process for selection of judges. Many believe that the election of judges makes judges more accountable. Judicial elections are also more open and transparent and provide an appearance of legitimacy. Proponents of judicial elections also argue that if the public is sufficiently qualified to elect other positions of public trust, they are also qualified to elect judges. There is truth to these and other arguments in favor of judicial elections. I tend to agree that if the public has the capacity to elect presidents, governors and other highly responsible officials, they certainly have the capacity to elect judges. Certainly judges must have certain minimum qualifications, but the fact that many if not most members of the voting public don't know the judges they are voting for, should not alone disqualify them from voting for judges. There will always be individuals who pull the lever with little understanding of the qualities or qualifications of the candidates they are voting for. Few of us would support, however, the establishment of minimum educational standards to vote. Taken to its logical extreme, the ignorance of the electorate could be used to justify the elimination of all democratic elections.
For me, while it is unfortunate that the public may indeed know less about judicial candidates than it should, I am less troubled by that fact than I am by the potentially corrupting influence of money, and how that is perceived by the public. That is the real issue that needs to be addressed. We trust twelve average citizens to make life and death decisions in a jury box - but not when we find out that one has talked with a tabloid about the possibility of selling a story. We rightly assume that the mere prospect that a juror might have a financial incentive to reach a conclusion has tainted the juror beyond repair, whether or not it actually has. Why then would we not make a similar assumption with respect to a process by which judges solicit and receive contributions and other political favors from those appearing before them, whether or not it has had any effect on the judges' decisions? Though there is reason to believe that the risk of corruption is remote, the recent U.S. Supreme Court case Caperton v. A. T. Massey Coal Co. underscores the potential for corruption and the need to consider reform of the process for selecting our judges.
An appointment process similar to that for federal district court judges, though far from perfect, is more conducive to the selection of judges whose decisions are less likely to be subject to undue influence, or the appearance of undue influence. Moreover, such a process tempers the effect of public ignorance and makes it more likely that those selected have the qualifications, competence and temperament required for the judiciary. MCB's own Buddy Wester, current North Carolina Bar Association President, weighed in on this issue in his March 2010 President's Perspective entitled, It's Time We All Agreed to Agree on the Need for Merit Selection. I concur with Buddy's conclusion that reform of the judicial selection process in North Carolina is long overdue, and that such reform should be grounded in merit selection.
There are various possible merit selection processes. In some states, there is a mix between appointments and elections. The governor appoints a judge for a term, and at the end of the term, citizens vote by referendum whether the judge is worthy of retention. Some states use a merit commission to select judges. If members of the commission are selected appropriately, and the selection process works as it should, a commission based selection process also has the potential to produce quality judicial candidates without some of the problems associated with public elections.
As the largest Bar in the State of North Carolina, MCB should consider joining with the North Carolina Bar Association to advocate for reform of the judicial selection process - to one based on merit selection that does not place judicial candidates in the unenviable position of having to depend on political campaigns and contributions from donors to secure their positions.
Whether you agree or disagree, I welcome your thoughts and opinions on how MCB can help ensure that our judges function within a system that is as free as possible from impropriety or the appearance of impropriety.