What makes for the best judiciary?

The North Carolina General Assembly has adjourned until May. While we wait, let's learn about what makes for a good judicial branch.

The North Carolina General Assembly adjourned this week until May 16th, 2018. They passed House Bill 90, but they did not pass any bills related to GenX or to the judicial branch. These issues might be taken up in May. In the meantime, we’ll send you information on best practices and current law around all sorts of issues. Let’s dive in with the best practices for judicial elections according to legal experts that the General Assembly heard from last year (1, 2).

Why is judicial selection so important and controversial?

The judiciary – technically the third independent branch of government – should be separate from the Governor and the General Assembly. Election or appointments of state judges should maintain this independence while maximizing accountability to the citizens of North Carolina.

Sounds easy, right? Not so much.

Across the United States, methods of judicial selection vary a lot. In 22 states, judges are elected. 7 of these states use partisan elections, while the rest are non-partisan. North Carolina currently holds partisan judicial elections. The next most prominent method of selecting judges is the Missouri Plan, otherwise known as a “merit-selection plan.” In a merit-based plan, a nominating commission generates a list of names which the governor can pick from to nominate. After a few years, the electorate will vote on whether to keep the judge or not.  

What are the the pros and cons of judicial elections?

Judicial Elections

Judicial elections are written into our state constitution to protect our judges from the politics of the other branches of government – but they are not without flaws. Many criticize that campaign spending has gotten out of hand. People fear that the candidate who spends the most will win the election. Constituents believe that when a judge is elected, their legal decisions will be affected by the opinions of those who financed their campaign. Additionally, often times there is especially low voter turnout for judicial elections and an uninformed electorate. To help fix these flaws, some states are turning to public financing of elections to avoid outside influence.

Merit Selection

Merit selection, the second most popular form of judicial selection, is flawed because of the fact that it is a political appointment tied to other branches of government. Proponents of merit selection say that it is preferable to the fundraising and campaigning associated with judicial elections.

Legislative Appointments

A third kind of judicial selection is legislative appointments. Only two states, Virginia and South Carolina, use this method. It is not proven to alleviate any of the issues that stem from judicial elections, and further undermines the independence of the courts by attaching them to the legislature. Legislators under this system have even been known to appoint former colleagues and even relatives to the bench, rather than looking for the most qualified candidate. Legislative appointments push the entire system of judicial selection out of the public eye.

So, What the Heck is the Purple Plan?

The Purple Plan is something that we have never seen before. Under this plan, all current judges would remain, once their seat becomes vacant, then a commission appointed by the Chief Justice would select nominees for the General Assembly to consider. The General Assembly then chooses three judges for the Governor to consider.While this may seem similar to merit-selection, in reality, it is just a masked version of legislative appointment. The current Chief Justice is Mark Martin, is a known Republican. There is no assurance that Martin wouldn’t appoint a committee of all republicans, who then would send their nominees to the General Assembly, where there are Republican majorities in both the House and Senate.The Brennan Center for Justice says that “The even larger problem with the Purple Plan is that it appears to merely put window dressing on a legislative appointment system. And by giving the legislature all of this power, this plan opens itself up to all of the problems South Carolina and Virginia have seen with their legislative appointment systems: nepotism, self-appointment, judicial applicants and their allies lobbying legislators, etc.”

The legislature might drop this plan altogether…But we’ll have to see in May.

1. Survey of Empirical Evidence Concerning Judicial Elections, Chris Bonneau

2. The Politics of Merit Selection, Scott Gaylord