Debate got testy Friday, April 27, as the Joint Select Committee on Judicial Reform and Redistricting discussed two House-passed bills awaiting action in the Senate.
Republicans say having the General Assembly rather than the governor fill some judicial vacancies would make the process more transparent and accountable. Democrats say such a shift would be a naked power grab.
Democrats fear the reform is an attempt by Republicans, who have veto-proof majorities in the House and Senate, to stack the bench with their own partisans. That could interfere with constitutional separation of powers, they said.
Republicans countered that the state Constitution lets the General Assembly — through legislation — decide how judicial vacancies are filled, and governors of both parties have made the process political. Republicans say their changes would give the public more say than the current system which empowers lawyer groups and special interests.
The committee didn’t vote on House Bill 240, which deals with District Court vacancies, or House Bill 241, which targets special Superior Court judge vacancies. State laws govern both of those vacancy processes. The Constitution spells out how to fill regular Superior Court vacancies.
When a District Court position opens, the bar group in the affected district submits five nominees to the governor to fill the unexpired term. There is no time limit to make an appointment, and the governor can ignore the recommendations. The governor nominates, and the General Assembly confirms, candidates to fill special Superior Court judge vacancies.
Under H.B. 240, the local bar would continue nominating candidates for district court vacancies but would have to submit names to the General Assembly within 15 days. Lawmakers could ignore the recommendations. Nominees for open seats would be approved by legislation.
H.B. 241 also removes the governor from the process, authorizing the General Assembly to make the five-year appointments for special Superior Court judges, who are not required to live in the district where they preside.
Committee Co-Chairman Justin Burr, R-Stanly, said the reforms create a much more open and transparent process.
“Currently many of these vacancies are filled in secret behind the iron fence of the governor’s mansion with no involvement from the public whatsoever,” Burr said.
Rep. Robert Reives, D-Lee, an attorney, said he thinks the reform would worsen a public perception that the General Assembly doesn’t operate transparently.
“I have a huge concern about the General Assembly making judicial appointments in this manner because, again, I feel like it’s infringing even further on the judicial branch of government,” Reives said.
The governor is elected statewide, and can be held directly accountable by constituents and the local bar for an unpopular or unwise appointment, Reives said. Accountability is diluted when spread among 170 lawmakers voting on a nominee, he said.
“It’s not surprising that you would prefer that a group of attorneys be able to pick the judge rather than have more influence from the public,” Burr responded. “I’m more concerned about whether the public is happy.” He said voters have no influence over local bars, but do have a say on who’s sent to the legislature.
Reives and House Minority Leader Darren Jackson, D-Wake, an attorney, said bar meetings to nominate judicial appointees are open to the public. Burr said he’s never been invited or informed of such meetings.
Burr said if Reives is correct, and the legislative branch interferes too much with the judicial branch by making appointments, then the same concern should apply to the governor. He said lawmakers are more likely than the governor to know whether judicial nominees from their districts are qualified and deserving.
Rep. David Rogers, R-Rutherford, an attorney, said empowering bar organizations with nominating authority is problematic, especially in smaller districts where one large firm often dominates the legal landscape.
“That firm by themselves could monopolize and pick every judge,” Rogers said. Governors acting unilaterally are less likely to choose candidates with diverse judicial perspectives than 170 lawmakers, he said.
Rep. Billy Richardson, D-Cumberland, an attorney, disagreed with the purpose of the committee. “What are we doing here? Are we doing merit selection?” he asked.
“This needs to be done through the Courts Commission” with people who know the system far better, Richardson said. “This is going to end in a disaster if we’re not careful.”
Sen. Dan Bishop, R-Mecklenburg, a committee co-chairman and attorney, said the committee has heard from a number of outside experts and the public about various ways to elect or select judges. None of the options presented favored one person filling all vacancies, as the governor currently does.
Rep. Joe John, D-Wake, a former judge, said the process for filling judicial vacancies has been changed or amended nine times since 1965 under both Republican and Democratic governors, and the governor has retained appointment power. Sen. Floyd McKissick, D-Durham, an attorney, said the gubernatorial appointment process has served the state well.
But Sen. Ralph Hise, R-Mitchell, Senate Redistricting Committee chairman, disputed the contention that judicial appointments are an executive function.
“The writers of our constitution basically said regardless of whatever court, commission, or whatever else might be out there the legislature will decide in a manner determined by law” how those appointments are made, Hise said. “This is a legislative decision.”