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I haven't really thought about how Jewel Farlow would be as a Court of Appeals judge, though I think that James Wynn is one of the very best we have in NC--a view that is shared, as you mentioned previously, by virtually every knowledgable lawyer who isn't overly motivated by party politics or a single, limited issue. He is nobody's activist, which is a term I view as being applied most commonly to judges who do things the speaker doesn't like. For example, so-called "conservative" judges have not hesitated to gut the Americans with Disabilities Act in our Federal Circuit, and the expansion of searches that are allowed without a warrant--stretching (or breaking) the Constitution for purposes of being "tough on crime"--has been startling. That is activist.

The concern I have over Ms. Farlow's showing is not based on her qualifications, but on the way it illustrates the randomness of our selection of judges. As you point out, she hardly campaigned at all, and yet she ended up with a surprising number of votes. It seems exceedingly unlikely that most of the people who voted for her had any idea who she is. Picking judges at random is probably not a good idea. It has cost us some very good judges in the past, and has put some on the bench who were not very good.

I'm not sure what the solution is, as the Federal appointment system certainly doesn't eliminate politics. Around the time of the last mid-term election, some yahoo Senator or Congressman from a Dakota was quoted as suggesting that President Bush should propose a polarizing candidate, for purposes of creating a fight with Democrats in the Senate that could be used as Republican campaign fodder. The quote was something like "Nothing stirs up the base like a good fight over a judge." That probably isn't the best foundation for picking great judges. On the other hand, the vast majority of judges who are proposed by presidents are not particularly controversial and cruise right through the confirmation process. Maybe one of the hybrid procedures, in which the Governor appoints judges that then have to stand for re-election, would work. Or maybe an electoral system would be OK, if we just figured out a way to inform the voters as to the quality of the candidates. Then, if Jewel Farlow did well, we could be confident that it was because folks thought she would be a good judge.

Thanks, Jay, for very thoughtful comments.

We almost have an appointment/election system because when vacancies occur (fairly often when elected terms are eight years), the governor appoints a replacement who serves until the next election. Unfortunately, governors by and large make partisan appointments even though the judiciary is nonpartisan.

An idea that has merit is selection by an impartial panel, and then after a couple of years the judge stands for a retention election. If the voters agree to keep him or her, he or she serves for a single long term, maybe 10 years.

Somehow or other, voters do a pretty decent job of making good choices, but they often need help. Courthouse observers need to speak out about judges' performance and qualifications. Newspapers need to devote more attention to the judiciary. The Bar Association is assembling surveys about judges, which promises to be very helpful. None of that eliminates the risk that a very poor judge might be elected, but even then mistakes can be corrected at the next election.

She polled 600,787 votes ... good for second place behind Judge Jim Wynn. They'll meet again in the general election* Doug

Doug! Do us a favor and check out the SBO judical site about the winner in a primary who takes over 40% wins the election in November without competion.....

Here you go Doug? Unless there is a administrative code, otherwise, Judge Wynn is running against himself November...

S#163‑111. Determination of primary results; second primaries.

(a) Nomination Determined by Substantial Plurality; Definition of Substantial Plurality. – Except as otherwise provided in this section, nominations in primary elections shall be determined by a substantial plurality of the votes cast. A substantial plurality within the meaning of this section shall be determined as follows:

(1) If a nominee for a single office is to be selected, and there is more than one person seeking nomination, the substantial plurality shall be ascertained by multiplying the total vote cast for all aspirants by forty percent (40%). Any excess of the sum so ascertained shall be a substantial plurality, and the aspirant who obtains a substantial plurality shall be declared the nominee. If two candidates receive a substantial plurality, the candidate receiving the highest vote shall be declared the nominee.

(2) If nominees for two or more offices (constituting a group) are to be selected, and there are more persons seeking nomination than there are offices, the substantial plurality shall be ascertained by dividing the total vote cast for all aspirants by the number of positions to be filled, and by multiplying the result by forty percent (40%). Any excess of the sum so ascertained shall be a substantial plurality, and the aspirants who obtain a substantial plurality shall be declared the nominees. If more candidates obtain a substantial plurality than there are positions to be filled, those having the highest vote (equal to the number of positions to be filled) shall be declared the nominees.

(b) Right to Demand Second Primary. – If an insufficient number of aspirants receive a substantial plurality of the votes cast for a given office or group of offices in a primary, a second primary, subject to the conditions specified in this section, shall be held:

(1) If a nominee for a single office is to be selected and no aspirant receives a substantial plurality of the votes cast, the aspirant receiving the highest number of votes shall be declared nominated by the appropriate board of elections unless the aspirant receiving the second highest number of votes shall request a second primary in accordance with the provisions of subsection (c) of this section. In the second primary only the two aspirants who received the highest and next highest number of votes shall be voted for.

(2) If nominees for two or more offices (constituting a group) are to be selected and aspirants for some or all of the positions within the group do not receive a substantial plurality of the votes, those candidates equal in number to the positions remaining to be filled and having the highest number of votes shall be declared the nominees unless some one or all of the aspirants equal in number to the positions remaining to be filled and having the second highest number of votes shall request a second primary in accordance with the provisions of subsection (c) of this section. In the second primary to select nominees for the positions in the group remaining to be filled, the names of all those candidates receiving the highest number of votes and all those receiving the second highest number of votes and demanding a second primary shall be printed on the ballot

You're citing the statute for partisan races. In nonpartisan races, like judicial and school boards, top two candidates advance. There's no 40 percent threshhold.

You're citing the statute for partisan races. In nonpartisan races, like judicial and school boards, top two candidates advance. There's no 40 percent threshhold.* Doug

True! But quote the statute or the offical constitutional law! If that is the case, than it is
administrative code and not law which flys in the face of the constitutional statutes. For example, in Supreme Court races, there is a set of administrative codes, which tells candiates what they cannot do or do in the race. Such as no campaign signs on public right ways or the size of a newspaper Ad which must be a certain size. When press to these codes, it was found there is no enforcement power or statute authority to forbid these codes.

You do see the problem? It needs to be challenge if no such law exists...You do believe in the rule of law in Judical conduct! Don't you? If not, we have self promoting close club who leaves the people out of the process of democracy and the right to chose it candiates in the election process. In short, what you have is that poltical constitutional races are equal, but judical races are more equal than other election races...Pure Orwellian in nature.

Take it to court. In the meantime, I say on with the election.

Doug,

Don't get caught suggesting that I am "thoughtful" too frequently. It will wreck your credibility with those who know who I am.

You are, of course, right about the history of de facto appointments to our courts, but I am concerned about the idea of an "impartial panel." It is an unfortunate facet of representing hurt folks in workers' compensation cases that lawyers like me get stuck in the political process, because our clients have no other voice. One of the things I have learned (reluctantly) is that power politics has a way of insinuating itself into things that seem designed to be "impartial." For example, how would the panel members be chosen? If the NC Bar Association chose them, they likely would come mostly from big firms, which tend to represent big businesses. To make matters worse, the panel would be able to pretend that it was impartial, while shaping the judiciary to its preferences. And it could be even worse. In a mercifully unsuccessful workers' comp "reform" bill about 15 years ago, there was a proposal for an innocuous-sounding "independent" panel to oversee Deputy Commissioners' decisions for "quality." The procedure for composition of the panel (the bill was being pushed by business interests) would have provided that representatives from all sides were on it, but it would have been dominated numerically by business and insurance appointees. The Deputy Commissioners were furious, recognizing that the plan was to pressure them into making decisions that were more "correct"--that is, more favorable to the business community that would be breathing down their necks. A similar problem would occur if a judicial selection panel was to be composed of "community leaders," the vast majority of whom are business people. I'm sure there would be a few representatives of working folks, but the history of such panels has been that votes tend to be overwhelmingly in favor of the 90% of members who are business folks, with vigorous, and ultimately futile, dissent from the 10% of cute little people, while the panel was being called by its majority and the news media representative of all interests. The point (to the extent there is one) is that it is very difficult to wash the politics out of these things. And when the details start sorting out, the powerful interests tend to get the better of things. That doesn't mean that we don't try some alternative system, but we need to be careful how we do it.

I am also a bit ambivalent about term limits. One significant problem with a lot of judges, and particularly appellate ones, is that many of them have little or no experience in relevant private practice. That is, they lack an understanding of what goes on in the real world of litigation. This is really acute in workers' compensation, which is a relatively arcane field in which most of the appellate judges have no experience at all, which leads to naive assumptions about the motives of insurance carriers, lack of understanding of the practical effects of some decisions and other bad things. It is also tough to swallow criticism of the bar's quality of appellate advocacy from judges who have never been involved in an appeal while actually representing a party. Therefore, I like the idea of having judges not stick around on the bench forever. On the other hand, some of our best judges have been people who were on the Courts for a long time, and term limits would knock them out. There is a limited pool of quality lawyers who are willing to accept a judge's salary. The best judges are those who view their positions as a public service for which they are willing to sacrifice money. Some of the worst are those who can't do any better. If we limit the time a judge can spend on the bench, I fear that we will run through the good ones pretty fast and be stuck with the bad ones. On balance, I don't know whether term limits would help or hurt.

Finally, your suggestion that "courthouse observers" should be more vocal about the quality of judges makes perfect sense--and is very unlikley to happen. Many judges take very personal offense to the suggestion that somebody other than them should have their jobs. This is particulary acute with incumbents, who tend to view the bench as their property. The people who are in the best position to comment on the quality of a judge's work are generally, and wisely, reluctant to do so publicly, for fear of retribution. For example, I am forced to admit that there are a couple of judges in the appellate ranks who I view as being lousy judges, and they may know that I think that, but waterboarding won't make me tell you who they are. This leads to an unfortunate silence from the public perspective.

but waterboarding won't make me tell you who they are. This leads to an unfortunate silence from the public perspective*Jay

Want to bet! How fast did it take the Republican Federal Supreme Court to roll over on the Patriot Act?

Doug said:
Take it to court. In the meantime, I say on with the election

Why do you always let me do the dirty work? Some reformer you are?

Jay, I wouldn't apply waterboarding, but I am always receptive to candid observations -- and I respect confidentiality.