A special legislative committee studying constitutional changes to the way North Carolina selects judges would be wise to leave things alone. That’s the view of a national expert on judicial selection methods who spoke at a Tuesday teleconference for reporters and judicial analysts.
Chris Bonneau says the system North Carolina and a number of other states use — partisan judicial elections — is the best way to put judges on the bench. Bonneau is a University of Pittsburgh political science professor who researches judicial selection and has written three books on the subject.
He defended his latest white paper on the topic during the teleforum, hosted by the Federalist Society and moderated by Scott Gaylord, a professor at Elon University School of Law.
Bonneau cited research and empirical data to support his belief partisan judicial elections are preferable to nonpartisan elections, lifetime appointments, and appointment-retention methods.
Party labels tend to inform voters of a candidate’s ideology, while appointment-based systems are more secretive, and conceal judicial ideology from the public, he said. Selection committees generally meet in private, they don’t publish their works, and the public has little to no input. Meanwhile, judges with lifetime terms can decide cases based on their own biases and — unlike term-limited judges — are difficult to replace.
Republican lawmakers leading North Carolina’s Joint Select Committee on Judicial Reform and Redistricting have advanced four methods for selecting judges.
The plan they have promoted the most allows some public input. People would nominate candidates to an appointed selection committee. The committee would submit all qualified candidates to the General Assembly for consideration — though how the committee would set qualifications is unclear. Lawmakers would advance at least three names to the governor for appointment. The appointed judge would face a retention election in the second general election following appointment and serve no more than a 10-year term on that court.
Bonneau said the public component of the selection process is minimal. “They’re throwing it in there to make [the appointment plan] palatable to the public.”
He questioned how valuable the committee would be in determining qualified candidates. In North Carolina, the qualification to be a judge is set by state law: A candidate must have a law degree. Devising other qualifications would be subjective and tricky.
“There’s agreement there’s no perfect way to select judges, but the common ground seems to end there,” Gaylord said. “They’ve been discussing and debating judicial elections for more than 200 years.”
Bonneau said the beauty of federalism is it allows states to decide which system works best for them.
The best cue voters have to how a judge will decide a case is ideology, and that can be inferred when a judge runs by political affiliation.
“We all know that liberal judges and conservative judges, Democratic judges and Republican judges view the law differently. And that’s OK,” he said.
While critics of partisan elections point to concerns about judges raising money from lawyers and special interests who might appear before them in court, Bonneau said it’s rare to find a judge who changes his ordinary voting pattern when a donor is before him.
He contends increased campaign spending equates to more transparency and provides more information to voters through disclosure laws. They get an idea how a judge might decide cases based on who funds the candidate. Judicial races rarely motivate voters. The more money spent on advertising, the more the public is aware who is running, and the more likely they will vote.
Bonneau said all systems of judicial selection include political elements. He cited former New Jersey Gov. Chris Christie refusing to reappoint judges whose decisions he didn’t agree with, and pitched confirmation battles for the U.S. Supreme Court, where Justices Samuel Alito and Sonia Sotomayor were both eminently qualified but received more than 40 and 30 no votes, respectively.
Politics play a part “if it was a governor appointing from a commission, or the governor appointing with Senate confirmation, or if it’s the voter making the choice himself,” Bonneau said. “We all know that the notion of apolitical judicial selection is a myth.”
Merit selection committees are stacked with lawyers, and politicians, doctors, and community business and social elites, not average Joes, he said.
Evidence shows voter rolloff increases in nonpartisan elections, Bonneau said. That is the percentage of voters who vote on races higher on the ballot, but not in down-ballot contests.
“Party identification is a huge bonus for voter participation,” Bonneau said. It generates 12 percent voter rolloff on average, and as low as 5 percent in some states. In nonpartisan and retention elections, voter rolloff is more than 20 percent.
Partisan elections give voters a choice they don’t have with appointments or retention elections. Even if they vote not to retain a judge, they have no say in the replacement because it goes back through the appointment process. Voters have no idea whether the replacement would be better or worse than the person they voted out, Bonneau said.
Judges appointed by a legislature or governor are far less likely to strike down laws. They are dependent on a governor and/or the legislature for reappointment, robbing them of independence.
The federal model of lifetime appointments is pockmarked with a lot of vacancies as judges die or retire. Many seats stay open for years if the White House and Congress refuse to agree on replacements.
That doesn’t happen when judges are elected. Lifetime appointments also make it easier for judges to decide a case however they see fit, regardless of the law or facts, Bonneau said.