North Carolina Lawyers Weekly
By SYLVIA ADCOCK, Staff Writer
A measure introduced in the General Assembly last week would create a hybrid system of selecting judges that would combine a screening committee with elections by the public – the first system of its kind in the nation.
The bill, pushed by the N.C. Bar Association, calls for a constitutional amendment to change the way North Carolina appoints and elects judges.
Under the bill, a 16-member Judicial Nominating Commission made up of both attorneys and non-attorneys would screen candidates for judicial office, and when a seat is open for election, the commission would recommend two candidates to the governor for the ballot.
Voters would choose from the two candidates. After that, the judges would have to run only in retention elections, in which they run unopposed but voters have an opportunity to vote them out.
“This doesn’t exist anywhere else,” said Seth Andersen, executive director of the American Judicature Society, a nonprofit center that studies the judiciary. “I’ve never heard of any such proposal.”
The measure would apply to appellate court and superior court judges.
North Carolina is among 21 states that hold contested elections. In most other states, a so-called merit appointment system is used where a nominating commission submits several candidates to the governor. The governor then appoints one of the candidates to the bench.
The proposal introduced last week would contain elements of the merit system because it would use a screening committee, but would still have contested elections. “It’s the ultimate hybrid system,” Andersen said. “It has a little bit of everything.”
The legislation was crafted by the NCBA Committee for Judicial Independence, co-chaired by former N.C. Supreme Court Chief Justice Jim Exum and John Wester, past president of the NCBA.
“This bill, if enacted and approved by the people, will greatly improve the way we select judges in North Carolina,” Exum said in a prepared statement. “It nicely balances the need for our judges to be both independent and accountable and it goes a long way to insure that lawyers selected for judicial positions will be well suited to the task.”
Sen. Fletcher Hartsell, R-Cabarrus, and Sen. Dan Clodfelter, D-Mecklenburg, are the primary sponsors of S. 458.
Gov. Bev Perdue is also expected to sign an executive order that would use a similar screening system when the governor fills vacancies that come open before an election, her spokesman said last week.
One key part of the proposal is the membership of the commission, which will be half attorneys and half laypeople. Various political entities will appoint the non-attorneys in an effort to create a bipartisan group. Members of various bar groups – from the Advocates for Justice to the N.C. Conference of District Attorneys – will help select the eight attorneys. In addition, all retired chief justices will be non-voting members. (See box at top for the makeup of the commission.)
Some say the change would take power away from the voting public. Raleigh attorney Bob Numbers said, “It seeks to silence of the voices of the two million North Carolina citizens who voted in judicial elections” and instead relies on “the opinions of unelected and unaccountable appointees and special interest groups.”
Numbers said that if the goal is to remove politics from judicial selection, “having a commission comprised of special interests is not going to do that.”
Daren Bakst, director of legal and regulatory affairs for the John Locke Foundation, a conservative think-tank, agreed. “That isn’t to say we shouldn’t be putting some thoughtful consideration into how we can assure the independence of the judiciary,” he said. “But now we get to have a bunch of appointees decide who the appropriate people are for the governor to put on the ballot.”
The bill states that in making appointments to the commission from the nominations received, the governor should consider making sure there is a balance of law practice background and practice areas as well as gender and ethnicity.
The commission shall investigate candidates, the bill said, and pay particular attention to such qualities as integrity, legal knowledge and ability, and judicial temperament.
The bill will likely have an uphill battle. Since it requires an amendment to North Carolina’s constitution, it must pass both houses by a three-fifths margin before it can go before the voters. Then the voters would have to approve the amendment.
Selecting the nominators
Under the bill, the commission that would nominate judicial candidates for the governor’s consideration would consist of 16 voting members.
The eight attorneys on the commission would be selected by the governor as follows:
– One from a list of three attorneys submitted by the NCBA
– One from a list of three submitted by the N.C. Advocates for Justice
– One from a list of three submitted by the N.C. Association of Defense Attorneys
– One from a list of three submitted by the N.C. Association of Women Attorneys
– One from a list of three submitted by the N.C. Association of Black Lawyers
– One from a list of three submitted by the Council of the State Bar
– One from a list of three submitted by the N.C. Conference of District Attorneys
– One from a list of three submitted by the Commission on Indigent Defense Services
The eight non-attorneys would be chosen as follows: two appointed by the governor, one appointed by the president pro-tem of the Senate, one appointed by the speaker of the House, one appointed by the minority leader of the Senate, one appointed by the minority leader of the House, one appointed by the majority leader or minority leader of the Senate of the party (whichever is not affiliated with the current governor’s party), and one appointed by the majority leader or minority leader of the House (whichever is not affiliated with the current governor’s party).
