Opinion: Daily Journal

Turning Judicial Selection Over to Special Interests

This week’s “Daily Journal” guest columnist is Daren Bakst, John Locke Foundation Director of Legal and Regulatory Studies.

RALEIGH — There’s an ongoing debate about the best way to select judges in North Carolina. Some people prefer partisan elections. Others prefer gubernatorial appointments. Still others want to see a system mixing appointments with retention elections. The list of possible scenarios could grow even longer.

But a recent development related to judicial vacancies outside of the election process should concern everyone interested in good government.

The North Carolina Constitution gives the governor exclusive power to fill judicial vacancies that arise between elections. Through a recent executive order, Gov. Beverly Perdue effectively has placed this appointment power in the hands of special-interest groups and partisan insiders.

The governor created an 18-person commission that will nominate three candidates for each judicial vacancy. The governor, regardless of whether she agrees with the slate of nominees, must select one nominee to fill the vacancy. Because Perdue is required to choose one of the commission’s nominees, it is the unelected and unaccountable special-interest groups and insiders who will be picking judges, not the governor.

The commission’s composition is completely political in nature. Eight special-interest groups nominated three attorneys each, one of whom the governor was required to pick for the commission. She chose the 10 remaining members herself. While there’s nothing unusual in a governor being influenced by partisan interests in performing her duties, she shouldn’t formally abdicate power to her political allies.

This is akin to the governor issuing an executive order compelling her to let special-interest groups pick three bills, one of which she must veto, or to let special-interest groups identify three prisoners, one of whom she must pardon.

In these situations, the governor is delegating away her express power to private and unaccountable interests. Citizens would not accept the governor passing the buck on those types of important decisions, and they should be even more outraged at Perdue’s attempt to avoid accountability for the selection of members of our judiciary.

If the commission merely made recommendations that the governor could accept or reject at her pleasure, there wouldn’t be a problem. Instead, Perdue is compelling herself by law to pick one of the commission’s appointees. This shows a lack of confidence in her own abilities and a disrespect for the state Constitution that has given her, and not anyone else, especially private parties, the power to execute the governor’s powers.

The executive order is just one part of an ongoing attack on our judicial system. The N.C. Bar Association has been pushing to amend the state constitution and implement a comparable commission model as a way to eliminate completely the citizens’ right to select appellate judges.

Under the proposed amendment, the governor would be forced to select one of two nominees appointed by a judicial nominating commission. The only person who could challenge the appointee in a subsequent election would be the other individual nominated by the commission. Either way, the commission gets a person it wants. The public would have no say as to who would be eligible to sit on the bench and would have to choose from candidates selected by special interests.

The proposed scheme would be far more political than our current election system because it would encourage — and, in fact, would require — behind-the-scenes lobbying as opposed to transparent elections.

As with the executive order, the people making critical decisions about who will serve as judges would be completely unaccountable to the public. We should not amend our state constitution to create a privileged class of individuals and special-interest groups who will staff an entire branch of the state government without accountability to the public.

There may be reasonable questions as to whether judicial elections better serve North Carolinians than judicial appointments. However, even if a judicial appointment process were adopted, it should involve the governor making nominations and the legislature playing a confirmation role, not unlike the federal model.

A constitutional amendment to create such a flawed system is unlikely to get far any time soon. However, the governor implemented a similarly flawed system through her executive order. The next governor, whoever that may be, should rescind the executive order immediately and fight to ensure an independent judiciary and a judicial selection process that doesn’t place special interests over citizens.