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Elect or appoint? Inertia a key factor in judicial choice process

This is the second in a series of stories about North Carolina’s process for choosing Court of Appeals judges and Supreme Court justices.

The unprecedented influx of outside money into judicial elections in North Carolina, and other states, has raised questions about whether those states will continue to use elections as a way of selecting appellate judges. In the first installment in our series, we looked back at a 1995 effort that very nearly moved North Carolina to an appointment system for selecting judges.Election buttons 2014 ad Text

But a comparative look at judicial selection in other states shows that while efforts to move states from one system to another crop up from time to time, successful efforts to change a state’s method are actually quite rare. Even though states are fairly evenly split between elections and appointments, and a state’s method is often attributable to historical quirks from centuries ago, once a particular method of selecting judges gets entrenched, states are very unlikely to change that system.

In fact, no state has made a major change to its method of selecting judges since North Carolina moved from partisan to non-partisan elections in 2001.

Bert Brandenburg, executive director of Justice at Stake, a nonpartisan organization devoted to keeping courts fair and impartial, says the durability of selection methods owes to the fact that any change typically requires altering a state’s constitution and dealing with longstanding political cultures.

“If a state has had judicial elections for decades, you have people who have grown up with it and are used to it and will wonder if a change is worth it,” Brandenburg said. “You’ve had states that have flirted with the idea of change, but it’s not simple, and any system will have entrenched interests.”

North Carolina is one of 22 states that elect appellate judges. Fifteen, like North Carolina, use non-partisan elections and traditional re-elections for incumbents. The others use partisan elections, four with re-elections, and three with retention elections.

Twenty-six states choose appellate judges by gubernatorial appointment with some form of oversight, usually in the form of a nominating commission or the legislature. Of those, 16 employ retention elections; in others judges are reappointed or serve for life or until retirement.

In the remaining two states, appellate judges are appointed and reappointed by elections in the legislature.

Whether a state elects or appoints judges is often strongly influenced by its geographic region and when it entered the Union. Before the mid-19th century, judges in North Carolina, like in most of the original colonies, were appointed for life. In the 1850s and 1860s, most of the Southern states switched to choosing judges by election. North Carolina made the switch in 1868.

Throughout the Northeast, the appointment system has remained intact, with judges either re-appointed, or serving for life or until retirement. Most of the states admitted to the Union after the Civil War, in the West and Midwest, also use appointments followed by retention elections. Brandenburg said that the appointment process, which originally tended to be clubby and favor insiders, has evolved in recent decades to become more inclusive and produce a more diverse slate of candidates.

Despite the existing trends, Brandenburg said he thought that the influx of money into judicial elections might lead some states to consider switching to an appointment system.

“I think at some point, if the money gets worse and worse, something has to give,” Brandenburg said. “I think we’re going to see more states considering merit selection down the road. I think there’s a wakeup call to states to look at their own recusal rules.”

One final note: Although the U.S. states are fairly evenly split between appointment and election for judges, the U.S. is one of a very tiny number of countries in the world where any significant number of judges are elected.

Follow David Donovan on Twitter @NCLWDonovan


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