The state’s most politically powerful lawyer group is re-examining its long-held opposition to judicial merit selection and may be moving toward acceptance of a new method of choosing judges or neutrality on the subject.
At a board meeting of the Academy of Trial Lawyers late last month, a lengthy discussion by the board led observers to say that the leadership’s position on judicial selection is now ‘too close to call.’ The new mood represents a dramatic swing from one year ago, when the same body voted 24-1 against any plan that would scuttle elections for judges.
Judicial selection was put on the agenda at the request of academy past president James Fuller of Raleigh. In a letter to president Mary Ann Tally of Fayetteville, Fuller said he now believes the continued popular election of judges ‘threatens individual rights and the independence of the judiciary.’
The academy of by its constitution champions the causes of civil plaintiffs, criminal defendants, and injured workers. It has resisted merit selection in the past out of belief that the rights of this client-base would be suffer if judges were appointed rather than elected. That view is evolving in the wake of last year’s judicial elections ‘ the bitterest on record.
Leaders Keynote Debate
The renewal of the merit selection debate puts some of the most powerful and popular academy figures at odds with each other. At the January board meeting, Tally requested that Fuller and former academy president Allen Bailey of Charlotte keynote the discussion from their opposing viewpoints. An academy leader for several decades, Bailey’s opinion and advice is sought on most important issues that come before the group.
Past-president and former legislator Howard Twiggs of Raleigh was not in attendance at the meeting, but his views in support of popular elections were well represented, Fuller said.
Tally characterized the board’s two-hour discussion as ‘wide-ranging,’ with the most common sentiments being disgust with the tone of the recent campaign, and harm to the judiciary springing from campaign fund-raising. ‘I was impressed with the thought and sincerity of all who participated,’ Tally said. Bailey agreed, calling the experience ‘rewarding.’
At the conclusion of the discussion, the board directed that a monitoring committee be appointed to follow legislative developments on merit selection. While no vote was taken to change the academy’s stance on judicial selection, Tally said, ‘In my subjective opinion, if a one had been, it would have been close.’ Talley has appointed Paul Pulley of Durham to chair the committee. Joe Williams of Greensboro and William Thorpe of Raleigh have also been appointed.
A Clear Message
Fuller’s late-November letter to Tally expressed his fear that a ‘clear message’ had emerged out of the judicial election campaign. A long-time defender of the academy’s position favoring statewide election of judges, Fuller said that his soul-searching in the aftermath of the campaign led him to believe the academy’s position ‘is wrong.’
When informed of the board’s debate, Twiggs said, ‘I continue to strongly support he election of judges and believe most lawyers and judges feel the same way.’ An American Trial Lawyers Association governor, Twiggs missed the board meeting while away on ATLA business.
Twiggs said there is no evidence that the judiciary has been corrupted by fundraising. ‘I know of no one who enjoys raising money, or who enjoys campaigning more than serving,’ he said. ‘But this is outweighed by the public’s right to get to know the judicial candidates.’ Twiggs minimized the fallout from last year’s campaign, saying it had little effect on people’s perception of the judiciary. ‘The public understands posturing and negative campaigning,’ he said. Twiggs labeled ‘elitist’ the suggestion that any individual or small group select judges better than the public at large.
Fuller said he is concerned that the last election might have ‘polluted’ the judicial selection process. ‘Individual rights and the independence of the judiciary are at risk,’ he said. Commenting on campaign mud-slinging, Fuller said one opinion solely concerned with procedural fairness was used as an example of ‘judicial approval’ of child abuse.
Fuller said while he does not know of any sitting judge who would consciously change a vote out of political fear, he still is concerned for the future. ‘If there is a death penalty case that merits discretionary review ‘ even one ‘ and if one or more of the justices so much as think to themselves `will this be used against me in the next election,’ then our jurisprudence is in one hell of a mess,’ Fuller said.