Opinion: Daily Journal

Scholars agree N.C. should pick, ‘stick to’ one judicial selection process

It’s no shocker that a fan of partisan judicial elections urges North Carolina to maintain its current system for selecting state judges. More surprising? A skeptic of partisan elections also urges caution as lawmakers consider changing the system.

The fan and the skeptic both took part in a May 7 judicial selection forum at Campbell Law School in Raleigh. The John Locke Foundation and Western Carolina University’s Center for the Study of Free Enterprise co-hosted the panel discussion. Organizers wanted to inform an ongoing debate among lawmakers.

As of 2018, the status quo means partisan elections for judges across the state. You’ll hear no argument against that system from Chris Bonneau, associate professor of political science at the University of Pittsburgh. For the second time in three months, Bonneau traveled south to tout the benefits of partisan judicial elections. (He offered a similar defense of North Carolina’s current system during a Feb. 15 panel discussion sponsored by the Federalist Society.)

“Partisan elections provide the courts with an independent system of power and authority that you don’t get with appointed systems,” Bonneau told his Campbell Law School audience.

In addition, partisan elections offer the most transparent form of judicial selection, Bonneau said. “There is no apolitical method of judicial selection,” he said. “Politics is always involved when we’re talking about selecting judges. So the question is: Do you want your politics up front, and visible, and transparent, or do you want them behind closed doors?”

In addition to transparency and the independent source of authority linked to partisan elections, Bonneau stresses the information provided to voters. “Party ID is the single most important piece of information any voter can have in any election.”

Given his endorsement of the current system, it makes sense that Bonneau ended his prepared remarks with a warning. “Y’all need to pick a system and stick to it.”

“If we’re concerned about the legitimacy of courts, we need to protect them,” he added. “What that means is we can’t simply change the method of selection or change how the courts function simply because we don’t like the outcomes we’re getting from decisions or we’re worried we’re not going to win elections.”

It’s easy for Bonneau to argue against major change. The status quo mirrors his policy preferences.

It’s not as easy to argue against change when you hold significant doubts about the current system. Count among the skeptics Edward Lopez, WCU professor of economics.

While moderating the May 7 debate, Lopez stated his concerns. He emphasized academic research and opinion polls focusing on the performance of state legal systems. That includes the systems’ reputation within the legal community.

“In a recent national survey of 1,321 practicing attorneys, North Carolina ranked 33rd out of 50 in the overall quality of the legal system,” Lopez said. “That is down 26 spots from the state’s seventh-place ranking in the 2015 version of that study.”

“Why the big drop? Research suggests that the reason we have dropped in that ranking is due to the switch to partisan judicial elections.” Lopez noted that the drop mirrors findings of an academic study cited in his 2010 book, The Pursuit of Justice.

Lopez pointed to other research that suggests links between partisan judicial elections and higher levels of government corruption. “Criminal convictions tend to spike before elections,” he said. “Is this the way that an impartial normative analysis of our legal system would prefer that it works? Do we really want criminal convictions to be affected by the proximity of … an election?”

Elections also appear to have an impact on the size of lawsuit judgments, Lopez said. “In elected systems, tort decisions are orders of magnitude higher than in appointed systems, which affects the business climate in the state.”

Despite his obvious concerns about partisan judicial elections, Lopez is not endorsing a quick, large-scale overhaul of the current system. During an interview with Carolina Journal Radio, he emphasized that any consideration of an appointment system would have to take account of factors that could limit judges’ independence and accountability.

What if lawmakers ultimately decide to stick with elections? “I think the decision — if it is representative of what the people of North Carolina communicate is their desire — then that is the right thing to do,” he said. “Once the policymakers in our state decide on a system, we’re all better off if they just stick with that system instead of going back and forth between partisan and nonpartisan to maybe going to an appointment and then going back to elections at some point in the future.”

“Stability in our judicial institutions matters a lot to the well-being of the people in the state,” Lopez added. “I would encourage those policymakers to pick a plan and stick with it.”

That sounds like the warning Bonneau delivered during the panel discussion. “Nobody likes uncertainty,” Lopez agreed.

Lawmakers reconvening Wednesday, May 16, in Raleigh will have plenty of work to do in the coming weeks. They will revise the state budget. They are likely to address school and prison safety concerns. They might approve additional measures related to GenX dumped in the Cape Fear River. Legislative leaders have signaled their interest in finishing these and other major pieces of business by July 4.

Does that leave them time for a major overhaul of the state’s judicial selection system? Based on the advice of both a fan and a skeptic of the current system, it might make more sense to stick with what we have.

Mitch Kokai is senior political analyst for the John Locke Foundation.