"There is no method of selecting judges which is worth a damn," said Duke law professor Paul Carrington. "They're all flawed."
That said, Carrington is one of many North Carolinians who think the system by which judges are elected needs some tweaking.
Although most judges are initially appointed, judgeships are elected positions throughout North Carolina. Consequently, at the end of their terms, all judges must run against opponents in general elections.
As in a state senate race, judicial candidates are affiliated with political parties and must raise their own campaign funds-money which has topped several million dollars in some judicial races.
Many wonder if raising campaign money inhibits a judge's ability to be impartial in the courtroom.
"Nobody is going to give money to judges but lawyers or special interest groups," said Carrington. "They are asking for a decision in a case they are about to file-you have a certain amount of extortion [in the system]."
Even if judges do not allow donations from lawyers to influence their decisions, the appearance of bias may also be harmful, said Thad Beyle, professor of political science at the University of North Carolina at Chapel Hill. "It at least raises questions if you were ruled against and you find that your law firm did not support the judge and the lawyer on the other side did," he said.
Another common complaint with electing judges is that voters do not know the candidates for judgeships well enough to make informed decisions, said Dan Gurley, political director for the state Republican party.
Carrington agreed, adding that the lack of knowledge is worst in cities.
"It's the urban areas in which the election of judges is most to be deplored. Who the hell knows what they're doing when they are voting for 70 judges?" he asked.
Perhaps in an effort to solve this problem, party affiliation is listed next to each candidate on the ballot. Although some question the rationale of making judgeships a partisan position, Gurley said listing a party gives a candidate something to base their vote on if they are uninformed.
Regardless of these measures, Scott Falmlen, executive director of the state Democratic party, noted that many voters did not vote in this year's judicial races. "Fully, 200,000 voters did not make it to the last court of appeals race appearing on the ballot.... In addition, the drop-off just between chief justice and associate justice of the Supreme Court was over 50,000," he said. "Voters simply did not have the patience, after standing in a long line to get their ballot, to vote for every office on the ballot."
I. Beverly Lake, a state Supreme Court justice who voters promoted to chief justice in the Nov. 7 election, said that in practice, the state's system functions as an appointed one. "Ninety-nine percent of judges were appointed by the governor and at the end of their term they stay there by election," he said in early November.
Ironically, a few days later, Lake ousted incumbent Henry Frye, who was appointed in 1999.
Carrington also found fault with appointing judges, an obvious alternative to electing them. "People don't like appointed systems because they think it empowers the state bar," he said.
He also worried that appointing judges engenders a lack of accountability, as demonstrated by federal judges who are appointed for life. "You put people in power for life and they are invulnerable. That institutes arrogance," Carrington said. "That may be a good thing or a bad thing, but it's really anti-democratic."
Many believe a system known as the Missouri Plan could serve as a compromise between the elected and appointed systems. In 1940 the state of Missouri adopted a scheme by which judges are first appointed to office, but then must stand periodically for retention elections. Forms of the plan have been adopted in several states, including Alaska and Hawaii.
Carrington and Lake both said the plan is well-intentioned and may effectively combat the problem of uninformed voters in urban areas.
One potential problem Carrington identified, however, was that candidates hoping to be appointed to a judgeship can easily organize smear campaigns to prevent a seated judge from being retained. "A sitting judge can be a sitting duck," he said.
If many feel such reforms are needed, why is so little being done to change the status quo? "Very low visibility," said Carrington. "If you went to any of those organizations that have political agendas, [judicial selection reform] is not very high in their concerns. You kind of have to work from the top down- from the inside."
And Carrington is trying to do just that. He, along with several former state Supreme Court justices including Harry Martin and Jim Exum and UNC-CH law professor Ken Broun, is currently trying to institute a North Carolina voter guide to better inform citizens of statewide candidates.
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