Strange Bedfellows on Judicial Elections

House Bill 99 will amend our state’s constitution concerning vacancies in the offices of superior court judges and district attorneys. Justice Robert Orr joins with Rep. Deborah Ross to make this change for our judicial elections. As I listened to the committee proceedings at the general assembly, I agree that there is some logic as Justice Orr points out in an article (excerpt below):

Apr 14th, 2011
by Justice Robert F. Orr
APRIL 14, 2011: Justice Orr sounds off on HB 99…

There are few pieces of legislation introduced each session that I can personally identify with, but HB 99 is the exception. This bill is a proposed constitutional amendment co-sponsored by Representatives Deborah Ross (D) and Jonathon Rhyne (R) that, in my opinion, if adopted, will be a major good government reform positively impacting the appellate courts of our state.

Currently, the N.C. Constitution provides in Article IV, Sec. 19 that a vacancy occurring on the Supreme Court or Court of Appeals is filled by appointment by the Governor. (I always tell people that we already have an appointive system and have since 1868). The catch is that the appointee has to run for election at the next general election that occurs more than 60 days after the appointment. The problem with this provision became patently clear to me when Governor Jim Martin appointed me to a vacancy on the N.C. Court of Appeals effective the first of September in 1986.

More…

The latest description and link for the legislation is shown below:

H99-v-1

A BILL TO BE ENTITLED AN ACT TO AMEND THE NORTH CAROLINA CONSTITUTION TO ALLOW APPELLATE COURT JUSTICES AND JUDGES ADEQUATE TIME TO FULFILL THEIR JUDICIAL DUTIES BEFORE RUNNING FOR ELECTION, AND TO IMPROVE ELECTION ADMINISTRATION BY INCREASING FROM SIXTY TO NINETY DAYS THE WINDOW WHERE A SPECIAL ELECTION IS REQUIRED TO FILL A VACANCY IN THE OFFICES OF SUPERIOR COURT JUDGE AND DISTRICT ATTORNEY, AND TO MAKE CONFORMING STATUTORY CHANGES.

I just have an issue where the legislation is reducing (or in this case bypassing) the voting power of the people in any election. Mr. Massengill’s question in the above video brings this point home and Ms. Ross’s rebuttal did nothing to ease my fears of more government power in our judiciary. No one is making the appointee run for the office and the concept of a “public servant” seems to be an illusive concept for superior court judges.

How bad is our system for judicial appointees? Even Gov. Perdue admits the system of political appointment of the judiciary by the governor is flawed or as the Charlotte Observer calls it “goofy”:

Perdue makes gutsy call on N.C. judges

Nominating panel would screen, recommend best candidates.

Gov. Bev Perdue has made a gutsy call that sets up a better way to choose judges in North Carolina. She proposes taking much of the politics out of appointing candidates to fill vacant judgeships, by naming a nominating commission to screen candidates and recommend the most qualified ones for appellate and Superior Court judgeships.

That’s the most promising advance in decades for improving North Carolina’s goofy system for choosing judges. Ostensibly we elect judges. But as a practical matter, many judges first go on the bench when they are appointed by governors to vacancies that occur between elections. Voters often have no choice over who becomes judge, and they must trust an ancient political spoils system to produce good judges. Sometimes it works well and produces outstanding jurists. Sometimes it doesn’t.

More… 

The bottom line is that a judicial appointee can bypass the voters if appointed prior to the election. Anytime an ACLU attorney, the North Carolina Bar Association and a former superior court justice get in bed, it is either a great idea or another power grab.

The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution from a co-ordinate of a general and special government to a general supreme one alone. This will lay all things at their feet. … I will say, that “against this every man should raise his voice,” and, more, should uplift his arm …

Thomas Jefferson, Sept. 1820

David DeGerolamo

      
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