NCGA Republicans Want to Replace Judicial Elections With an Appointment System. Here Are Four Ways They Could Do That. | News

NCGA Republicans Want to Replace Judicial Elections With an Appointment System. Here Are Four Ways They Could Do That.


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Yesterday, we got our first look at what the General Assembly’s proposed reforms for the judiciary, changing an elected system to one in which judges are appointed. As The News & Observer reports: “There has been talk for months about a plan that could emerge from state lawmakers proposing to abandon the election of judges in North Carolina for an appointment process that would give legislators a key role in deciding who sits on the bench. Several plans to do just that were revealed on Wednesday toward the end of a meeting of senators chosen by Senate leader Phil Berger, a Rockingham County Republican and lawyer who tapped 15 people in the fall to discuss judicial reform and redistricting. Four plans were presented, and each one gave lawmakers a role in the appointment process. Any plan would be subject to approval by North Carolina voters. They would have to approve an amendment to the state Constitution for judges to be appointed instead of elected.”

Here’s what those four plans look like (see PDF at the bottom of this post) [NCGA]
  • The “blue plan” would more or less follow the federal system, in which the governor nominates judges and each chamber of the General Assembly votes to confirm the nominee. Then, at the next election, voters would get to confirm or reject the nominee for an eight-year term. The judges would have retention elections after that.
  • The “orange plan” mimics Missouri’s system. A fifteen-member Judicial Nominating Commission—appointed mostly by the governor with the assistance of legal groups, but with a few members appointed by legislative leaders—identifies, solicits, reviews, and nominates candidates to fill a vacancy. The commission then forwards two nominees to the governor, and the governor has to pick one. Thereafter, the appointee serves a fourteen-year term and is eligible for renomination by the commission.
  • The “red plan” follows the South Carolina/Virginia model, in which “the people nominate or self-nominate” candidates to fill a vacancy, the General Assembly appoints a judge from those nominations, and that judge serves until the mandatory retirement age of seventy-two.
  • Finally, there’s the “purple plan”: the people nominate, an independent Merit Selection Commission appointed by the state’s chief justice evaluates the nominees and forwards them to the General Assembly, the General Assembly forwards three candidates to the governor, and the governor appoints his pick. “At the 2nd general election following the Governor’s appointment the people vote to confirm or reject the judge to a 10-year term of office. After the term, the Judge is not eligible for reappointment to the same court.”

    The purple plan seems most likely to be advanced, or, at least, it garnered the most attention in yesterday’s hearing. As the N&O notes: “Senators had many questions about the plan, but agreed to send a letter to Berger urging him to get together with the speaker of the House, Tim Moore, a Cleveland County Republican, and appoint another select committee of lawmakers from both House and Senate and both parties to further consider the reform proposals as well as judicial redistricting.”

WHAT IT MEANS: As I’ve mentioned before, I’m generally sympathetic to the idea that judges should be appointed and not elected. Voters too often pick judges without knowing anything about them—and indeed, because judges are supposed to be impartial, they can’t very well campaign on how they intend to rule. In North Carolina, all voters will have to go on are party labels, and that’s not a recipe for a good judiciary, especially if the legislature gerrymanders judicial districts, as it seems keen on doing.
  • Still, the key is finding a judicial nomination system that actually works. And this is where I’ve been skeptical of the NCGA’s initiative. After all, Republicans in the legislature have shown time and time again this last year that their key priority is consolidating power, stripping it from the Democratic governor and the courts that often rule again them. We shouldn’t ignore the motives at play.
  • Of the plans on offer, the only one that, at first blush, bothers me is the red plan, which would put nominating power in the hands of the General Assembly, essentially giving Republicans license to choose the referees who will determine whether the laws they pass are constitutional. The others contain multiple layers—legislature, governor, nominating commissions—that would at least provide some checks and balances. (I’m partial to the blue plan.)
  • Voters will have to approve whatever the legislature devises. If all the talk of the coming blue wave stands up, then lawmakers might have some difficulty convincing Democratic-inclined voters to forfeit their right to choose judges, especially if the system they’ve created ensures Republican dominance of the bench.
See related PDF Judicial_selection_plans.pdf

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