Judicial vacancy amendment one House vote away from reaching November ballot

A constitutional amendment setting up a merit-selection commission to fill judicial vacancies has won preliminary House approval.

House members approved Senate Bill 814, the Judicial Vacancy Sunshine Amendment, 72-48, Wednesday, June 27. It received the minimum votes required to pass a constitutional amendment. The Senate passed the measure 34-13 on Monday.

The House will take a final vote Thursday. If it passes with at least 72 votes, the amendment will appear on the Nov. 6 general election ballot.

The bill would create a nonpartisan commission at the local and state levels. Members would be appointed by the chief justice of the Supreme Court, the governor, and General Assembly to evaluate and rate nominees on their professional experience and qualifications.

The General Assembly would review qualifications of the nominees, and forward at least two recommendations to the governor. The appointee would have to stand for election within two years to retain the seat.

Rep. Justin Burr, R-Stanly, called the current method of the governor appointing judges to a vacancy “one of the most undemocratic processes in state government,” and a violation of the public trust.

He recalled Gov. Bev Perdue’s “machinations” in the last days of her administration, “going to great lengths to deprive incoming Gov. [Pat] McCrory of important judicial appointments.”

Perdue named a Democrat to fill a Supreme Court seat without any vetting, reversing an executive order she had issued requiring a vetting process for candidates seeking open judicial seats.

During her last day in office she appointed four judges. Three worked in her administratration — including her general counsel, who had no judicial experience, to an open appeals court seat, Burr said.

“It has been done by both Republicans and Democrats,” he said. “One person with no accountability picking judges is wrong, and creates all sorts of conflicts of interest and potential ethical problems.”

Burr said governors sometimes thwart the will of voters. Some judicial candidates who lose elections wind up on the bench by getting picked by the governor to fill a vacancy. He is aware of dozens of such cases over the past several decades.

Incumbent judges also work with governors “to retire before the end of their terms so that they can hand-pick their own replacement,” Burr said. S.B. 814 would thwart judges rigging the system to get friends appointed to their seat.

Based on the number of vacancies over the past 10 years in the 500 seats in district, superior, and appellate courts, a two-term governor would appoint about 40 percent of judges statewide “based on political influence, behind closed doors, not based on qualifications or merit,” Burr said.

Democrats were skeptical.

“This is an attempt by the legislature to take total control of judicial vacancies,” warned Rep. Marcia Morey, D-Durham, a former district court chief judge. “This is anything but sunshine. This is a legislative thunderbolt.”

Morey said the idea of a nonpartisan, merit-based system based on qualifications was so enticing she would vote for it if it were applied to legislators.

But it likely would end up entangled in partisan legislative politics, she said.

“I think it will prolong the vacancies … and justice will not be served,” Morey said.

She thinks the current system of local and state bars recommending nominees should be kept. Lawyers best know the qualifications and experience of fellow attorneys to serve as judges, she said.

“In my opinion, you are obliterating the separation of powers clause in the constitution,” said Rep. Robert Reives, D-Lee, who also questioned how transparent the proposed process would be.

“There are arguments to be made … that our budget process was a touch undemocratic” this year, Reives said. Republicans worked on the budget behind closed doors without Democrats’ input, held no committee meetings, and allowed no amendments.

“That’s the same process we’re going to be doing for these judgeships,” Reives predicted.

If Republicans believe merit selection is a better system they should allow the selection commissions to make recommendations directly to the governor, removing the General Assembly from the process, he said.

He said leaving appointment power with the governor lends greater accountability because the governor is elected statewide. Voters unhappy with an appointment in their district have an opportunity to vote against the governor, making it more likely the governor would be responsive to local wishes. Voters don’t have that recourse if 170 members of the General Assembly recommend nominees.

But Rep. Jonathan Jordan, R-Ashe, said gubernatorial appointments don’t always satisfy local needs. An example is local transportation boards, whose members are often appointed without consultation with local officials, he said.

Citizens would have greater say in judicial vacancy appointments through the merit-selection commission than they do now through recommendations from local bars associations, which don’t hold public meetings, he said.