Are judges politicians?
And why – even in a state such as North Carolina, where judges are elected by the public – does the concept of judges who also function as politicians seem curious, if not troubling?
Beyond honesty, intellect and knowledge of the law, perhaps a judge’s most important characteristic is a commitment to being impartial. Rulings must go where the law leads. They must not be geared to curry favor with voters, to advance a policy agenda or to please campaign contributors.
The problem, of course, is that anyone running for or holding elective office has to decide to what extent he or she will tell voters what they want to hear, or how much favoritism to show toward folks who have opened their wallets.
Yet North Carolina clings to its tradition of elected judges. From local judges hearing traffic cases to the justices of our Supreme Court – as well as candidates for those posts — all must go before the voters to get or keep their jobs. Over the years, this system has served both personal and partisan interests. But it puts well-intentioned judges and people who aspire to the bench in an awkward spot.
Interests in play
Who would want things to become even more awkward? Logically, people who see some kind of benefit. Perhaps they think they could elbow their way to the front in a race for a judgeship. Perhaps they think making the system even more political, more akin to races for Congress or the legislature or the governor’s mansion, will help further a certain partisan or policy agenda. In any case, more awkward is the trend in North Carolina – and it’s hard to see how that serves the cause of impartial justice.
The NC Council of Churches certainly isn’t alone in wanting to see justice in this state rendered impartially by wise jurists well-versed in the law. But an organization such as the Council brings a special focus on how the legal system treats people who don’t come to court with the advantages of money, power and privilege. If there’s a drift into partiality, these are the people who are likely to come out on the short end. So the Council is a strong advocate for keeping the process of judicial selection as free as possible of the trappings of conventional politics.
North Carolina moved ahead of the national curve when it set up a way for judicial candidates to finance their campaigns without having to depend heavily on contributions from private parties. Candidates for appellate judgeships who raised modest qualifying amounts from individuals and who agreed to limit their spending could tap public funds to meet campaign expenses.
The program was popular with candidates, who no longer had to raise all their money from individual donors – some of whom could well be the same lawyers whose cases the judges ended up hearing.
Taxpayer-funded campaigns have allowed judges to avoid potential conflicts of interest amid an unseemly contribution chase. But conservative opposition last year proved fatal. For this year’s judicial elections, due to the General Assembly’s rash overhaul of elections laws, it’s back to the old system of campaigns financed by whoever has a sufficient interest in the outcome to part with their own dough.
What’s more, loosened restrictions on the financing of so-called independent campaigns – those waged on a candidate’s behalf but without coordination with the candidate – are sure to mean large additional amounts spent to influence our judicial elections. For this, we have the U.S. Supreme Court to thank.
Often, the sources of those independent expenditures can’t even be identified. But typically, the goal is to elect judges whose “philosophy” tilts in a way that suits the interests – ideological, practical or both — of wealthy funders. The interests of poor people or of working folks being ground in the wheels of our free-market machine? Too often, they don’t rate.
Just read the label?
Not so many years ago, our judicial candidates ran with party labels attached. Legislative Democrats, no doubt alarmed that Republicans were making inroads on the bench, switched the rules to eliminate those labels from ballots. Indeed, while party affiliation offers cues to someone’s values and policy choices, when it comes to evaluating potential judges it can be the lazy way out.
As a practical matter, though, the Democrats’ move backfired as more and more candidates who happened to be Republican won election to our courts. Party labels might have served as a firewall. Now from the party’s standpoint it’s too late – unless Democratic-leaning forces mount another successful independent campaign to spotlight judicial candidates on the party’s team, as they did in 2006.
That’s the year Democrat Robin Hudson, then a judge on the state Court of Appeals, became the first woman elected to the Supreme Court without having first joined the court via appointment to fill a vacancy. Now Hudson seeks another eight-year term.
It looked for most of the filing period earlier this year that she would have one opponent – Republican Eric Levinson, a Superior Court judge in MecklenburgCounty. Levinson used to be on the Court of Appeals, but he resigned to work as a liaison in Iraq for the U.S. Department of Justice. He then filled a similar role in Afghanistan. Upon his return, he was appointed to a Superior Court judgeship by Democratic then-Gov. Beverly Perdue.
If the race had been between only Hudson and Levinson, voters would have chosen between the two in November. But with the filing period winding down, a third candidate stepped forward – Jeanette Doran, a Republican recently appointed by Republican Gov. Pat McCrory to a board that hears appeals of unemployment compensation claims. Previously, Doran served for six years as staff attorney and then for two years as executive director of the N.C. Institute for Constitutional Law.
Room for just two
With three people in the running, the candidates will appear on the ballot in the May 6 primary election. The top two finishers will advance.
Doran isn’t obliged to consider how other candidates might be affected as she exercises her right to run. Perhaps she and Levinson will split the vote from conservatives and thus help Hudson make it to the fall. But another scenario would be that Doran and Levinson between them could attract enough votes to squeeze Hudson out before the general elections. The primary, after all, is likely to have a relatively heavy Republican turnout as the party chooses a nominee to oppose Democratic U.S. Sen. Kay Hagan.
When legislative Republicans undertook a hard right turn after winning control in 2010, they so much as invited aggrieved Democrats and liberals generally to make their day with legal challenges. Several such challenges now are percolating upwards toward the Supreme Court – for example, lawsuits contesting the election law changes, as well as redistricting plans that enhance Republican candidates’ chances by packing Democratic-leaning minority voters inside convoluted boundaries.
Do Republicans assume that a Supreme Court justice sharing their partisan persuasion will rule in their favor? If Democrats regained a Court majority, would the outcomes on these critical cases be different? The heated 2012 contest for a swing seat – a contest in which a ton of outside money helped Republican Justice Paul Newby claim another term – signaled the importance the parties attach to these nominally non-partisan races.
Regardless of who is elected or re-elected to the Supreme Court this year, the real test of merit should be not whether they side with their party in protecting its interests but whether they can decide cases independently, impartially and with a deep understanding of the law. With politics and money figuring so heavily in the selection of our state’s judges, the task of choosing people of that caliber sadly becomes more difficult.
