Why change? Voters do just fine when electing judges

Commentary

There has been increased interest lately in the process by which North Carolina selects its judges, an interest driven by bills introduced last year in the General Assembly and the North Carolina Bar Association’s proposal for a hybrid merit selection system.  Largely missing in this discourse has been a defense of the electoral process as successful and effective.

Contrary to criticisms often heard in the legal community, North Carolina’s electoral system is overall a dignified and intellectually robust process that produces good results.

Avoiding politics is frequently the chief reason why critics promote merit selection alternatives over judicial elections. Merit selection procedures, proponents argue, insulate the judiciary from the purportedly more political electoral process.  In reality, however, merit selection simply moves politics into the hands of an unelected and unaccountable merit selection committee.

Such committees are dominated by preferred special interest groups due to the manner in which their members are appointed, such as the Judicial Nominating Commission that was instituted by executive order last year in North Carolina. With merit selection committees, the political process is simply distorted instead of avoided.

The other major proposal, an appointment system based on the federal model (executive nomination and Senate confirmation), likewise does not avoid politics. To the contrary, federal judicial nominations have become highly politicized and acrimonious in recent decades. Federal judicial nominations are dominated by special interests that strategically participate in presidential elections, closely monitor nominations, and seek to have their partisans in key positions in the White House and the Justice Department to maximize leverage over nominations.

In contrast, in an election unaffiliated voters have a direct check against overly partisan activity. The inevitable news reporting on such partisanship can sway independents against such candidates. This check may be a reason why judicial elections in North Carolina have been generally characterized by an appropriate judicial tone, arguably much better than exists with contemporary federal judicial nominations.  In this respect, elections are more participatory, and therefore arguably less dominated by special interest politics, than the alternatives.

Political activity is simply more visible in an election than in a merit selection committee or a nomination process. That’s a strength, not a weakness, of an election.

The myth of the ‘uninformed’ voter

The other common complaint about judicial elections is the demonstrably false supposition that voters are uninformed and randomly select candidates for judicial office.  The evidence shows otherwise. While there is no question that some voters are uninformed, such is true of all elections.  Democracy would have failed long ago if elections produced random outcomes because uninformed citizens vote. However, those who know nothing about candidates for an office either do not vote (itself a rational decision) or cancel out each other’s votes by picking candidates randomly.  Those who have knowledge about the candidates, not voters making random choices, ultimately decide elections.

How do average voters get information about judicial candidates?  It’s far more available and utilized than elections critics acknowledge. Many voters follow the advice of a trusted and informed friend, not infrequently a lawyer, who shares their values. Others pay attention to the endorsements of organizations whose recommendations they value, including newspaper endorsements. Particularly with the expansion of the Internet, more information is available about candidates for judicial office than ever before, including videos of interviews and candidate forums, questionnaire responses, articles, and opinion pieces. This robust amount of available information produces a voting population that is, in the aggregate, quite well-informed — even if any given voter might not be.

Recent North Carolina election results also refute the contention that voters are, in the aggregate, ignorant.  In 12 out of 16 contested appellate races since 2006, the election was decided by more than a five percent margin, and some by much larger margins. If voting were as random as elections critics suppose, judicial elections would be decided by statistically insignificant margins.

The genius of democracy is that the electoral process can produce a better outcome than one wrought by the deliberations of a committee or governor’s staff. This is because of the great capacity of the body politic to digest information and competing values in an election.

Don’t overlook accountability

Additionally, contested elections hold incumbents accountable, unlike lifetime appointments or ineffective retention elections. Appellate judicial elections in North Carolina are also tempered by a public financing system and have a strong tradition of maintaining judicial temperament. Our state’s system produces a judicial branch that is both more independent of the other branches of government and less dominated by special interest politics than the alternatives commonly are.

All of this is not to say that judicial elections are perfect. As Winston Churchill said, “Democracy is the worst form of government except for all those other forms that have been tried.”  The democratic process has a logic to it that is often under-appreciated.

Robert Shaw is an attorney with the Raleigh office of Williams Mullen, where he practices tax and employment law.