I attended an outstanding event at the O. Henry Hotel last night, "Election vs. Appointment: Why You Should Care about Judicial Selection."
It was put on by the North Carolina Center for Voter Education and hosted by former N.C. Supreme Court Chief Justice Henry Frye. A panel discussion was moderated by Rachel Paine Caufield of the American Judicature Society and Chris Heagarty of the N.C. Center.
The program's title was sort of a plaintive plea. As noted by panelist Bob Orr, a former state Supreme Court justice, this issue really doesn't register with the public. Most North Carolinians seem content with our current system of electing judges and would resist big changes.
As panelist Sanford Steelman, a member of the N.C. Court of Appeals, said, most people will express three sentiments on the subject:
1. We've always elected judges in North Carolina.
2. We'll never give up our right to elect judges.
3. I don't have a clue who the judicial candidates are.
Steelman added that #1 is not true -- judicial elections only began in North Carolina in 1868; #2 remains to be seen; but #3 is undoubtedly true.
Orr and Jim Exum, a former N.C. chief justice and the third panelist, told funny stories about judicial elections.
For Orr, it was having someone mention having voted for him. Orr thanked him, but was taken down a peg when the man went on to explain, "I didn't know who you were but I'm from Massachusetts and my favorite hockey player was Bobby Orr ..."
Exum recounted a 1970s campaign when he was stumping in Eastern North Carolina for a seat on the Supreme Court. He encountered a friend, who assured Exum of his support. Exum asked the man to also vote for chief justice candidate Susie Sharp, whose opponent was a vacuum cleaner salesman. In those days, there was no rule that said a judge had to be a licensed attorney.
"A vacuum cleaner salesman? Then I'm going to vote for him," the man said. "There's too many damn lawyers there now."
Sharp won, but the vacuum cleaner salesman got a quarter-million votes, Exum recalled.
Lawyers or not, good judges are important. By and large, we have good judges at all levels of our court system. But that could change in any given election. In some states, judicial elections have turned into political free-for-alls as candidates slug it out over all kinds of hot-button issues, such as capital punishment, abortion, the Ten Commandments and -- sure to come -- same-sex marriage.
The point is not whether these are valid issues for public debate but whether judicial candidates should stake out their views on matters that might come before them in court and deserve open-minded consideration. If you've already announced your view before hearing the arguments, how are you going to render a fair decision?
Exum dealt with that in his campaigns. He personally opposes the death penalty and was on record to that effect when he served in the legislature. His view on capital punishment became an issue in judicial races. But, he said, as a judge he voted many times to affirm death sentences. Why? Because his job was not to impose his own beliefs but to uphold the law.
We do not need judges who are less conscientious about their responsibility to law than to political expediencies or personal preferences. But we choose judges in a political system that tempts candidates to run on political issues like capital punishment. In fact, when most voters pay very little attention to these races, the way for a candidate to stand out may be to seize on emotional, headline-grabbing issues like that.
Last night's panelists all argued for changes that, more or less, shift responsibility for selecting judges away from the voters.
Horrors? Easy now. Judges in the federal system and in every state were all appointed until the idea of electing them came into vogue during the era of Jacksonian democracy in the 1830s. Maybe the Founding Fathers were wiser than that.
The voters don't have to be excluded from the process. Some states allow merit selection of judges, then retention elections.
One way for that to work is like this: A diverse panel recommends several candidates for a judicial opening, and the governor selects one. The judge serves for a relatively short time of two or four years. Then a retention election is held. The judge is on the ballot, but no opponent. The people can vote to keep the judge or to remove him. If they keep him, he serves a long term and then retires. If the voters remove him, the selection process comes up with a replacement.
There's no perfect system. There's no system that's free of politics. But there are systems that are better than ours. We should find one before "the people" make some serious mistakes.