At a public debate at Elon Law on October 29, North Carolina Supreme Court Chief Justice (Ret.) Jim Exum urged that North Carolina move to a system of appointing judges, arguing that elections wrongly influence judges to consider the political implications of their decisions, while Elon Law professor Scott Gaylord defended judicial elections, saying an appointive system could create undue influence by the executive and legislative branches on the judiciary.
The debate was organized by Elon University School of Law, in partnership with the News and Record of Greensboro, to explore whether the state should continue its current system of public elections for judges or change to an appointment system like that used by the federal government.
Exum, Distinguished Jurist in Residence at Elon Law, said there is no perfect way to select judges, but that an appointment system would reduce political influence once judges were in office by removing the influence of campaign contributions on sitting judges.
“Politics in judicial selection is like matter in the universe,” Exum said. “You cannot destroy it. It will always be there. The question for us is where do we want to put the politics. I can tolerate politics in the initial selection process, in an appointment process, but what seems to me to be intolerable is when the judge is in office, working on cases, at that point it seems to me intolerable to subject that judge to popular political recall.”
Exum, said that judges should consider only the law in deciding cases, not how their decisions might effect future elections to retain office.
“Once in office, judges should be insulated from the political winds that blow across our land from time to time,” Exum said. “There are not many eternal verities in my scheme of thinking, but there are at least two. One is that I have come to believe that human beings will never be able to administer the death penalty fairly and equitably, and it is time to abolish that. The second is, we have no business electing judges.”
Gaylord argued that an appointive system could threaten the co-equal powers among the three branches of government.
“One of the reasons that we moved to judicial elections in 1868 was that concern of political patronage and the judiciary becoming too beholden to the legislative or the executive branch,” Gaylord said. “In order for me to get the position as a judge, I have to get cozy with whoever is making the appointments and, if I do that, my objectivity serving as a check on the legislative branch may be compromised.”
Gaylord also contended that elections present a check on the power of judges who might otherwise serve lifetime appointments.
“The election process is a means by which you can try to get the judiciary to have a control, to have a check on the process, and answerable to the people as opposed to what Lincoln and Jefferson talk about as a ‘despotism of an oligarchy,’” Gaylord said. “With lifetime appointments, there’s not a lot you could do to put a check on judges within an appointment system, and there’s not a lot that the executive or legislative branches could do at that point.”
Exum responded that the current Judicial Standards Commission was adequate to prevent individual judges from bringing the judicial system into disrepute.
Highlighting the recent state Supreme Court decision in State v Bowden, affirming that life sentences were defined as 80 years for those individuals convicted during a five year period in the 1970s, Exum said the justices decided the case correctly according to the law, but that the decision could have an impact in elections.
“The decision was legally correct, but politically it is absolute dynamite,” Exum said. “If the members of the court were up for election in November, do you think any of them would survive? Probably not. If you want judges to decide cases according to the law, then it seems to me to follow that we don’t want judges to be subject to being recalled by a popular vote of the people on the basis of the decision that they made.”
During the question and answer period, John Alexander, Distinguished Leadership Coach in Residence at Elon Law and the moderator for the debate, asked North Carolina Senator Don Vaughn to assess the chances that the state legislature would take up the issue of judicial selection reform in the its next session.
Vaughn said that the legislature would be concerned primarily with the cost of making the change and any long-term cost impacts a policy change would have on the state budget. Exum said that moving to an appointive system could save the state considerable money that currently is used to fund judicial campaigns of those who qualify for public financing.
North Carolina Representative Maggie Jeffus also spoke during the question and answer period, describing concerns among residents that the current public financing system for judicial elections may result in the use of taxpayer resources for the campaigns of judges they do not wish to support.
Click on the E-Cast links to the right of this article to view video clips from the debate.
Wade E. Byrd, a North Carolina/Fayetteville attorney and past president of the North Carolina Academy of Trial Lawyers, was unable to participate in the debate due to illness.
