RALEIGH – As the head of a think tank named after John Locke, I am predisposed towards empiricism as a tool of analysis. I prefer to judge current or proposed policies on the basis of measurable outcomes, not intentions or vague feelings.
That’s why I’m having trouble reaching a firm conclusion on the issue of selecting supreme court and appellate judges. Some lawmakers and attorneys want North Carolina to abandon its current popular election in judges in favor of gubernatorial appointment with either legislative confirmation, similar to the system laid out for federal judges in the U.S. Constitution, or a future retention election (that is, one without a challenger).
Others want North Carolina to abandon open judicial elections in favor of a system that limits judicial candidates to those pre-selected by a commission of lawyers and nonlawyers. Still others want to keep general elections but restore party labels to judicial candidates and abolish coercive funding of judicial campaigns.
Each camp has its arguments and assertions. But something important is lacking: empirical evidence that any particular model for judicial selection “works” better than any other.
In the March edition of the American Legislative Exchange Council newsletter, law professors Brian Fitzpatrick and Stephen Ware divide state judicial selection processes across the country into four categories: 1) elections (e.g. North Carolina and Georgia), democratic appointment (e.g. South Carolina and Virginia), commission-based systems (e.g. Tennessee and Florida), and hybrid plans (e.g. Maryland).
Electoral states are the most common. Democratic-appointment states are rarely but include not just neighboring Virginia and South Carolina, which entrust appointive power to legislatures, but also California and New Jersey, which give the power to governors.
Commission states, also called Missouri Plan states after the state that initiated the modern version of the idea, ran the gamut. Some state commissions are dominated by bar associations. Others seek to mix lawyers and nonlawyers on the nominating panel, as a proposed North Carolina bill does.
Fitzpatrick and Ware do a great job of listing the potential pros each system. Elections ensure independence from other branches and democratic accountability. Appointment plays to the strengths of elected officials, either legislators or governors, who might have more knowledge of judicial candidates than the general public does and thus make informed decisions without forcing potential judges to run political campaigns. The Missouri Plan further insulates judicial selection from political patronage or influence.
The problem is that each of these pros is more theoretical than empirical. Each can also be seen as a con – perhaps judges ought to feel accountable to voters, or to elected legislators or governors, rather than accountable only to their own consciences or personal preferences, for example.
As you can see from the examples I cited, North Carolina and nearby states have gone in wildly divergent directions when it comes to judicial selection. Here’s my problem: can anyone show me, based on some commonly accepted criteria, how the appellate courts of these states compare to each other? Are North Carolina’s elected judges more or less competent, fair, efficient, or restrained than judges in South Carolina, Virginia Florida, Georgia, Tennessee, or Maryland?
Until I see a clear empirical case for reform, my preference will be to retain our current electoral system, with party labels and voluntary financing of judicial campaigns restored to the process (they were removed purely for partisan reasons).
I’m open to persuasion. As John Locke once wrote, “I attribute the little I know to my not having been ashamed to ask for information, and to my rule of conversing with all descriptions of men on those topics that form their own peculiar professions and pursuits.”
Not that I’m saying lawyers have chosen a peculiar profession, but now that I think about it . . .
Hood is president of the John Locke Foundation.