North Carolina’s Supreme Court Chief Justice Mark Martin is pushing the proposal of selecting rather than electing state court judges. During Martin’s address to the N.C. Bar Association’s annual convention on Saturday in Asheville, he called for an appeal to voters to change the state constitution to allow for what he believes will be a “merit selection” process. In theory and for many casual observers, Martin’s suggestion sounds like a no-brainer. Who is against an “independent” and supposedly a more “qualified” judiciary? But for advocates of limited government, judicial restraint, and the will of the people, this proposal could spell big trouble.
Of course, the American Bar Association has long supported “merit” selection, believing it promotes a purer form of judicial independence that removes the overt politicization of state courts. But is it possible that some “independent” commissions and boards might have ulterior motives, or be politicized themselves? Could an appointive process be an attempt at an end-around on the increasingly popular calls for judicial restraint? Could it stymie the appointment of judges with a stricter reading and interpretation of constitutional texts?
In a 2009 article in the Missouri Law Review, Vanderbilt University Law professor Brian T. Fitzpatrick makes a compelling case that merit selection moves the politics “into closer alignment with the ideological preferences of the bar” instead of the people, who overall are more conservative than an increasingly left-wing legal guild. In his article, Fitzpatrick points out that Missouri’s nominating commission has nominated judges that have donated vastly more money to Democrats than Republicans, despite the state’s more equally split party voting patterns. Yet, the Missouri Plan for nominating judicial candidates is often touted by many as a nonpartisan model. One of the reasons some Republicans purportedly acquiesced on their vote for President Trump in the general election was the fear of an unrestrained U.S. Supreme Court molded by Hillary Clinton. And why not? More and more moral and legislative decisions are being decided by what is often an unelected judiciary issuing decrees without firm constitutional guidance.
This is a national problem, and is particularly problematic in North Carolina, where legislation reflexively and increasingly ends up in court for the simple fact one side does not currently control the legislative process. In an era where the idea of self-government is increasingly under attack, North Carolinians would be wise to reject calls to bypass the direct election of state judges by the people.
Additionally, the General Assembly made the right call in March to overturn Gov. Roy Cooper’s veto to make those elections partisan. Unfortunately, our judiciary across the nation has been politicized, but it’s not because of elections or even judicial elections with party labels, but stems from cultural and political fragmentation that only exacerbates today’s judicial activism.
This is no less true, and in fact there may be evidence that it’s a greater problem in states with judicial appointment systems in place. In those states, judges are less likely to be representative of the people. A major argument put forward by proponents of the appointment of state judges is that the voters are just not educated enough to select highly qualified judges. However, now more than ever, the nation needs more, not less civic awareness that includes education regarding judicial interpretation and the proper role of the courts.
A 2003 Federalist Society article offers wise words from political scientist Phillip Dubois: “(J)udges must often exercise their discretion and in so doing are influenced by their own political, economic, social, and moral viewpoints. And, in a democratic political system, voters are entitled to periodically select those who make law and public policy, including those who interpret their laws and give meaning to their constitution.
“In the end, given the monumental failures of government, it’s up to the people to salvage the Republic. Ultimately, only they can hold the increasingly powerful judicial overseers accountable.
Ray Nothstine is a member of the North State Journal’s editorial board, separate from the news staff. Unlike other newspapers, the North State Journal does not publish unsigned editorials; the author or authors of every editorial, letter, op-ed, and column is prominently displayed. To submit a letter or op-ed, see our submission guidelines.
