For more than a decade, hundreds of distinguished judges, politicians and citizen advocates have invested thousands of hours researching, debating and recommending ways to improve the method of selecting judges in North Carolina. Commissions were established, blue-ribbon panels convened, hearings held, reports written. In the end, the legislature passed a package of judicial reforms in 2002 that were widely hailed as a major advancement that would improve the quality of the bench and remove the most objectionable elements from the old system. Today, the free-for-all disguised as a nonpartisan race for the vacant state Supreme Court seat formerly held by Robert Orr has exposed that major advancement as at most a tiny step, at least in one key respect. And among those candidates with a legitimate shot, the one who has adhered most closely to the spirit of the reforms is likely to wind up screwed out of the job as a result.
By way of background, Orr announced last March that he planned to resign in order to lead the new N.C. Institute for Constitutional Law. The resignation would take effect during the summer, he said, as he wanted to finish up several cases he'd been shepherding to completion, including the landmark Leandro appeal on school funding.
The resignation triggered wild speculation about Orr's timing and its consequences. Most importantly, if he didn't step down officially until after Sept. 2, then Gov. Mike Easley would appoint a successor for a two-year term (Supreme Court judges ordinarily serve eight-year terms). That seemed unlikely, as Orr, a loyal Republican, didn't want to give Easley the opportunity to install a Democrat who would then have a substantial incumbent's advantage down the line. If Orr left the bench before that date, a replacement would be elected in November.
Orr ultimately departed in July--too late to hold a primary for the seat. Under state law, this meant that an unlimited number of candidates could run in November, and that the one with the most votes would win--hardly the ideal scenario envisioned by the reformers.
The 2002 judicial reform package had three primary components: Elections at the appellate level and higher would be nonpartisan, as they already were in the lower courts; a voter guide listing candidate experience, qualifications and a statement would be sent to every registered voter in the state; and judges would have the option of participating in a public financing program. The less money from lawyers or other interest groups in the campaign, the less likely judges would face conflicts of interest. The public, which polls show has a low opinion of the justice system, could in turn regain some confidence in the integrity of the courts.
Not everyone has bought into the plan. Republican officials opposed making the races nonpartisan, as the GOP has gained majorities on the high courts in recent years. "As you know, the Democrats ... have changed the rules for judicial races, to make them 'non-partisan,' because voters were electing more and more Republicans," wrote state GOP executive committee member Dave Burton of Cary in an e-mail to a Duke student. "That was a transparent ploy to try to elect more Democrats by depriving the voters of information. The GOP is trying to address that problem by making public endorsements in these supposedly non-partisan races."
Burton ignored the fact that support for the reforms was bipartisan and included prominent Republican judges. He also neglected to mention that the state voter guide will provide more relevant information about judicial candidates in a single source than voters have ever had. Then again, that's not the kind of information he's talking about.
Burton's definition of important information--where candidates stand on the issues--became fair game last year when the state Supreme Court changed the state judicial code of conduct to allow judges more latitude to express their personal views. Supreme Court Chief Justice I. Beverly Lake Jr. said the old rules created too much confusion and controversy, "but now we have a clear set of guidelines."
Lake, who believes that any system he helped create is perfect and needs no changes whatsoever, has resolutely ignored the firestorm of protest that followed. Typical was the letter written by the N.C. Association of District Court Judges: The change "severely compromises the appearance of judicial impartiality and fosters the public perception that politics play an essential role in matters of judicial conduct," the letter stated. "The changes in the code of conduct really do undercut the reforms," says Chris Heagarty, who directs the N.C. Center for Voter Education.
At least some of the Republican judicial candidates have been taking full advantage. Nary a week after Orr declared his intention to resign, Assistant U.S. Attorney Paul Newby announced he'd seek the seat. Newby wasted no time staking out his positions on the issues, identifying himself as a conservative, family-values guy who believes that "judicial activism is threatening the very foundations of our culture."
Since then, Newby has continued to articulate positions on issues that may come before him if he's elected. In a candidate survey distributed by the conservative North Carolina Family Council, Newby weighed in on whether homosexuals should be allowed to adopt children (they shouldn't), whether a display of the Ten Commandments should be allowed in public buildings (yes), whether human stem cells should be used for scientific research (nope) and a host of other hot-button topics. He included a disclaimer to the effect that these are his personal views, which would not affect his decisions in the courtroom.
Disclaimer or not, such statements may cause Newby problems down the line if he's elected. In a letter declining to answer the same survey, fellow candidate and current Superior Court Judge Howard Manning wrote that to publicly state one's views on issues might require recusal in the event that cases involving those issues come before the court. The subject matter of all but one of the 17 survey questions, he wrote, "deals with a disputed legal or political issue which might reasonably become the subject of litigation."
Newby freely admits that he's campaigning as a Republican who embraces a conservative agenda. His blurb in the state voter guide, which is designed to further the nonpartisan aspects of the election, notes that he's the only candidate in the race with the Republican party endorsement. "I think that having a party label is helpful to the electorate," he says.
Seven other candidates have joined Newby on the ballot, including two sitting judges (Manning and James Wynn), a former judge (Betsy McCrodden) and a passel of less experienced lawyers. While most have eschewed expressly running as Democrats or Republicans, that has by no means removed partisan politics from the equation. The Democratic party decided not to endorse in the race but to list all Democratic judicial candidates as a block. That decision didn't sit well with some in the party who felt the Republicans and Newby would gain an advantage in the race for Orr's seat. Democratic leaders could not come to a consensus, acknowledges party executive director Scott Falmlen. "I wouldn't say there was a disagreement," Falmlen offers. "I would say there was no agreement."
Wynn, who supported the shift to nonpartisan elections, has made no secret of his displeasure that the Democratic party did not endorse him. Political groups have done their partisan thing as well. The Durham-based People's Alliance endorsed Wynn, for example, noting that "his candidacy in this very crowded contest is the best chance to have a seat held by the Democrats."
On the Republican side, attorney and candidate Rachel Lea Hunter has been the target of vicious attacks by state Republican executive committee member Burton and others who perceive her as potentially dividing the GOP vote. Hunter has countered by calling Burton "Dave the Barbarian" and "Psycho Dave," and suggesting that Newby's overtly conservative agenda is as activist as any he claims to oppose.
The one candidate who has steered completely clear of the partisan rhetoric is Manning, who commands respect from both sides of the aisle and has long opposed partisan judicial elections. Manning expressly asked not to be endorsed by either party. "To take a backwards step and endorse judicial candidates on the basis of political party affiliation is the antithesis of non-partisanship in judicial elections," he wrote in a letter to party chairmen.
If party politics wins the day, Manning will surely take a beating on election day. Worse, a Newby victory will set the tone for future elections, in which candidates and their parties will emphasize party affiliations and political platforms more than they ever did before the "D"s and "R"s were removed from the ballot. "It's a real threat," says Heagarty.
Ironically, Orr predicted the potential backfire more than two years ago in a conversation with News & Observer columnist Steve Ford. Holding nonpartisan elections, he said, might reduce the appearance of partisan influence, but would cause "the special interest aspects of the election system [to] take on a far more influential and dangerous role." Well spoken, judge. Now back to the drawing board.