Opinion: Daily Journal

The case for judicial selection status quo

There’s one point of near-universal agreement when it comes to selecting state judges: No state has figured out a perfect system.

But as lawmakers debate the way North Carolina places judges on the bench throughout this state, at least one expert offers support for maintaining the system in place today.

Judicial selection has generated headlines in recent months. While the N.C. House approved a measure to redraw judicial election maps, Senate counterparts presented a plan to replace judicial elections with an appointment process. One version would assign specific roles in judicial appointments to all three branches of government — through the N.C. Supreme Court chief justice, General Assembly, and governor — along with an outside commission.

These and other ideas are likely to crop up May 7. The John Locke Foundation and Western Carolina University’s Center for the Study of Free Enterprise will host a lunchtime panel discussion on that date in Raleigh. It will target the future of judicial selection in the Tar Heel State.

While panelists will haggle over pros and cons of various forms of merit selection or judicial appointment, at least one is likely to tout the virtues of our current system: partisan elections.

After a relatively brief absence, party labels have returned to judicial elections only recently. Voters saw them in 2016 contests for the N.C. Court of Appeals. People heading to the polls will see D’s and R’s connected to all judicial elections this year.

Listen to Chris Bonneau, and you might welcome party labels’ return. An associate professor of political science at the University of Pittsburgh, Bonneau’s academic studies emphasize judicial politics. Last month, he authored “The Case for Partisan Judicial Elections” for the Federalist Society.

He also served as de facto defender of North Carolina’s judicial selection status quo during the Federalist Society’s Feb. 15 judicial selection panel discussion at the N.C. State Bar.

Partisan judicial elections “are not as bad as people say,” in Bonneau’s words. “That, you may think, is faint praise. But, actually, it’s not. … There are a lot of virtues to having judicial elections.”

Bonneau identifies three virtues. The first involves information, especially in the case of appellate judges. They often handle difficult cases in which the law can be unclear.

“We know that liberal judges and conservative judges view the law differently,” Bonneau said. “What ends up happening, though, is we tend to pretend like judges are robots. They go away, and then they say, ‘Here’s the law, Here’s the facts. Here’s the outcome. And ideology and policy preferences don’t play a role.’ They do play a role.”

Lawyers know that judges’ personal preferences can play a role in complicated cases, Bonneau said. That’s why lawyers react with either concern or relief when their cases head to one judge instead of another.

Voters should have access to that same information about judges’ contrasting approaches to legal disputes, Bonneau said. “The simplest way to provide that information to voters is by the party ID of the candidates,” he said. “Nonpartisan elections have voters try to make a choice without a vitally important piece of information for them. That’s not helpful.”

The second virtue of partisan elections helps distinguish them from retention elections. Bonneau describes the virtue as “meaningful choice.” “In retention elections, you only get to decide whether the current judge gets to keep his or her job,” he explained. “But you don’t know who the replacement’s going to be. The replacement could be worse — far worse.”

In addition to setting up a false choice between a real judge and a “mythic” or “ideal” alternative, retention elections can create another disadvantage for sitting judges. “You could think you’re sailing through to retention,” Bonneau said. “No problem. No one’s going to oppose you. Then two weeks before [the election] some group drops in a $2 million ad buy against you. Now you’re flat-footed.”

In contrast, partisan election contests tend to have clearly defined filing deadlines and other campaign milestones. A sitting judge and any challengers know what they will need to do to win.

Transparency stands as the third virtue of partisan elections, Bonneau said. “It puts the politics out in front.”

A judicial appointment process offers much less clarity. Comparing judicial appointments with the secretive method used to elect the Catholic pope, Bonneau contends that partisan elections offer voters a much more open process.

The transparency generates benefits for the judicial system. “One of the things that political scientists have found is that judicial elections actually don’t decrease the legitimacy of the courts, particularly in states that have had them for a long time,” Bonneau said.

“Yes, it’s messy, and, yes, sometimes good judges lose,” he added. “That’s true for any office. … Of the alternatives, it’s the alternative that maximizes the amount of information, promotes the maximum amount of transparency, and gives the voters the highest stake in who sits on the bench.”

Bonneau shied away from making an official recommendation to preserve North Carolina’s partisan judicial elections. He did offer one suggestion. “If you’re concerned about the legitimacy of the courts, pick something and stick to it for a while,” he said. “Don’t keep changing it every time there’s a new political party in power. That will do more to erode the legitimacy of the courts than anything else you do.”

It’s an important message to keep in mind as N.C. policymakers weigh the merits of making a massive judicial change.

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