RALEIGH – When the North Carolina General Assembly enacted a “reform” of the state’s judicial elections a few years ago, the goal was to construct a convenient fiction: that neither political party nor special interests would influence the selection of appellate judges.
This year, the fiction may prove at least slightly inconvenient for Democrats.
Set aside all the blather about campaign finance reform and the sanctity of the judiciary. It’s never fooled anyone who was paying close attention. After years of Republican gains on the state’s highest courts, Democrats sought a way to arrest the GOP’s momentum and eventually to eject the unwelcome interlopers. Legislative leaders were particularly peeved when the Supreme Court, with a GOP majority, rejected a blatant gerrymander of House and Senate districts in 2002 and concluded that the state constitution’s provision respecting county lines ought to be honored to the maximum extent compatible with federal law and practicality. Under an interim plan instituted by the courts, Republicans won a two-seat House majority in the 2002 elections.
Democratic leaders responded along two parallel tracks. First, House Speaker Jim Black bribed a Republican lawmaker, Michael Decker, to switch parties right after the election. Then he negotiated a power-sharing agreement with a handful of dissident Republicans, led by Richard Morgan, that ensured Democrats would maintain most of the power in a 60-60 House and be able to redraw the lines again for the 2004 election cycle to restore a Democratic majority. Short-term problem solved (at the cost of subsequent felony convictions of some of the perpetrators).
The other track was “reforming” the judiciary to remove the unwanted jurists, a strategy hatched just before the 2002 elections. For years, Republican candidates for the appellate courts had outperformed their party’s other statewide candidates. Part of the reason was that Democrats seemed more likely than Republicans to stop filling out their ballots before reaching the bottom. Another reason was the electorate’s perception, however accurate, that GOP judges might be tougher on crime and more conservative in judicial interpretation than their Democratic opponents would be. On balance, having an R beside one’s name gave judicial candidates a modest edge, just as it was helpful to have a name that sounded familiar or female.
Of course, few North Carolina voters actually knew much if anything about the qualifications or judicial philosophies of the individuals on the ballot. They still don’t. If you think that’s a fatal flaw in the system, you should support an appointive rather than an elective system.
The Democrats in power at the time weren’t interested in that solution. Instead, they crafted legislation that would strip the party labels off of the ballot for judicial candidates – a measure they fully expected to benefit their party – while creating a new campaign-finance system that rewarded those who accepted public funding and punished those who didn’t. Initially, they sold the new system on the grounds that it would be funded voluntarily and would limit special-interest participation in judicial elections. Neither was likely to be true in reality, and indeed we know now that neither has come to pass. But it sounded good at the time.
Why adopt a new finance system? Because truly statewide campaigns will inevitably cost more money than a public-financing system will ever generate. By starving judicial candidates of sufficient funds, the legislation was actually intended to increase the value of endorsements and independent expenditures, areas where Democrats enjoy an advantage.
The strategy has worked so far, reducing the ranks of Republican justices and judges. And unlike the first strategy, it hasn’t gotten anyone thrown in the pokey.
But this year, as I said, judicial “reform” may prove to be an inconvenient fiction. Contrary to what happened in past cycles, it’s the Democratic Party in 2008 who has the statewide momentum and the benefit of a well-financed turnout operation. Party activists have made sure to send out guides clearly indicating which of the “nonpartisan” judicial candidates to vote for, but that’s somewhat-less effective than having the label right on the ballot.
Sorry to be cynical about all this, but the cynicism predates me.
Hood is president of the John Locke Foundation.