United States: State Lawmakers Roll Out Proposals For Judicial Appointment System

State courts are the workhorses of our judiciary. Nationwide, approximately ninety-five percent of all cases are initiated in state courts1. That percentage is even higher in North Carolina,2 which is why the discussion of judicial reform in our state is so important.

During the recent special legislative session, senate members of the Joint Select Committee on Judicial Reform and Redistricting rolled out four proposed plans to change how North Carolina selects its judges. Each would replace our current system of judicial elections with a process by which judges are appointed. Lawmakers have not established a time frame for any proposed reform, but all four plans would ultimately require a statewide referendum and constitutional amendment. The following is a primer on the appointment scheme in each plan:

The Blue Plan: Gubernatorial Appointment

  • When a judicial vacancy occurs, the governor nominates a judicial candidate.
  • The candidate must be confirmed by a majority of members in the house and senate.
  • In the general election following legislative confirmation, the people vote to either confirm or reject the candidate for an eight-year term.
  • After the first eight-year term, the judge faces retention by a vote of the people.

The Blue Plan is based loosely on the federal model, in which the president nominates and the senate confirms judicial candidates. A full discussion of the ideology behind the Appointments Clause in the U.S. Constitution is well beyond the scope of this newsletter. Suffice it to say that the method by which federal judges are selected is "consistent with the doctrines of separation of powers and checks and balances."3

The Blue Plan is not the first effort to style judicial selection in our state after the federal model. The General Assembly revived this specific proposal from 1995 Senate Bill 971, which passed in the senate with bipartisan support but failed a second reading in the house.4 While the federal model is a familiar one, no state has adopted it in exact form. Many select judges for their highest courts by gubernatorial appointment and legislative confirmation, but the appointments are typically preceded by binding or non-binding nominations from an independent commission.

The Orange Plan: Merit Selection by Commission

  • When a judicial vacancy occurs, a fifteen-member Judicial Nominating Commission identifies, solicits, reviews, and nominates two judicial candidates.
  • The Judicial Nominating Commission consists of eight "Attorney Appointees" and seven "Non-Attorney Appointees."
    • All Attorney Appointees are chosen by the governor, who appoints one of three nominees submitted by each of the following:
      • North Carolina Bar Association
      • North Carolina Advocates for Justice, Inc.
      • North Carolina Association of Defense Attorneys
      • North Carolina Association of Women Attorneys, Inc.
      • North Carolina Association of Black Lawyers, Inc.
      • The Council of the State Bar
      • North Carolina Conference of District Attorneys
      • Commission on Indigent Defense Services
    • One Non-Attorney Appointee is selected by each of the following:
      • The governor
      • The President Pro Tem of the Senate
      • The Speaker of the House of Representatives
      • The House Minority Leader
      • The Senate Minority Leader
      • The leader in the house of the party opposite the governor's
      • The leader in the senate of the party opposite the governor's
  • The governor must appoint one of the two nominees presented by the Judicial Nominating Commission.
  • The appointee serves a fourteen-year term and is eligible for re-nomination by the Commission.

After problems with its partisan judicial elections, largely attributed to the infamous Tom Pendergast (see Harry Truman, "The Senator from Pendergast"), Missouri became the first state to adopt the "merit selection" model. It relies on an independent body to assess and nominate judicial candidates for appointment. Thirteen other states have adopted the model, with modifications.5 The most significant variation among those state models is commission membership, which may include selections from the governor, the legislature, the state bar, or a combination of the foregoing.6 In Missouri, for example, the commission charged with nominating appellate judges is composed of seven members: the chief justice, three lawyers elected by the Missouri Bar, and three lay persons appointed by the governor.

The Orange Plan is based on the Missouri model. If nothing else, credit the plan with a framework capable of producing diverse commission membership. It was previously considered by the General Assembly in 2012 Senate Bill 458, but a lack of momentum doomed the plan to the same fate as its Blue counterpart.

The Red Plan: Legislative Appointment

  • When a judicial vacancy occurs, the people nominate or self-nominate judicial candidates.
  • The General Assembly appoints one nominee to fill the vacancy.
  • The appointee serves either for life or until the mandatory retirement age of seventy-two.

South Carolina and Virginia are currently the only states in which the appointing authority is vested in the legislature.7 While the governor and legislature typically work in tandem to select judges, each serving as a "check" on the other's power, this appointment model cuts the governor out of the process. Perhaps as a consequence, legislative appointments have been heavily criticized for breeding favoritism, corruption, governmental dysfunction, and a lack of judicial independence.8

In 1976, for example, Rhode Island's General Assembly appointed the sitting Speaker of the House, Joseph Bevilacqua, to the state's Supreme Court.9 Due to his public associations with the mafia, the eventual Chief Justice Bevilacqua attracted the attention of state and federal law enforcement.10 In 1985, he was suspended by the Commission of Judicial Tenure and Discipline, but he remained on the bench until the following year, when he was threatened with impeachment.11 After years of scandal and resulting "distrust of the General Assembly's role in the judicial selection process," Rhode Island abandoned its legislative appointment system in favor of merit selection.12 But that has not deterred some lawmakers from advocating for a similar system in North Carolina.13

The Purple Plan: "Balanced Judicial Selection"

  • When a judicial vacancy occurs, the people nominate or self-nominate judicial candidates.
  • The Chief Justice of the North Carolina Supreme Court appoints seven or nine persons to serve staggered terms on a non-partisan Independent Merit Selection Commission. The Independent Merit Selection Commission evaluates the nominees for vacancies at the Supreme Court and the Court of Appeals. The Local Independent Merit Selection Commissions evaluate nominees for superior and district court judgeships. The commissions rate each nominee as either "Qualified" or "Not Qualified at this Time." The Independent Merit Selection Commission then forwards all qualified nominees to the General Assembly.
  • The General Assembly reviews the qualified nominees submitted by the Independent Merit Selection Commission and forwards at least three nominees to the governor.
  • The governor reviews the nominees submitted by the General Assembly and appoints the nominee the governor considers most qualified to serve a provisional judicial term.
  • In the second general election following the governor's appointment, the people vote to confirm or reject the judge to a ten-year term. After the ten-year term expires, the judge is not eligible for re-appointment to the same court.

During the committee meeting, the Purple Plan received the most attention from lawmakers. It incorporates elements from other state models in which the governor, legislature, and an independent commission all play a role. When a judicial vacancy occurs on the Supreme Court of Hawaii, for example, the governor nominates one candidate from a list of binding recommendations provided by a judicial selection commission, and the nominee is then confirmed by a majority of the state senate.14 Maryland follows the same approach, except the governor is not required to nominate a candidate from the list provided by the judicial nominating commission.15

The Purple Plan is unique (indeed, the "first-in-the-nation system for naming judges")16 in its arrangement of these component parts and the roles assigned to the players involved. Details of the criteria used to "rate" judicial candidates have not been released, but in its current form, the plan does not provide the Independent Merit Selection Commission the power to nominate or even recommend judicial candidates. In contrast to other hybrid models, the plan also reverses the common progression of judicial candidates through gubernatorial appointment and legislative confirmation, providing some assurance to the General Assembly that the judge appointed will be its own pick of the litter.

Long before his Broadway appearance, Mr. Hamilton warned of the dangers in legislative appointment power:

"[I]n every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight."17

Whether this model can be truly distinguished from a legislative appointment system will largely depend on the role of the Independent Merit Selection Commission and criteria it uses to evaluate judicial candidates.

Footnotes

1 SCOTT GREYTAK, ALICIA BANNON, ALLYSE FALCE & LINDA CASEY, BANKROLLING THE BENCH: THE NEW POLITICS OF JUDICIAL ELECTIONS 2013–14, at 1–2 (Laurie Kinney ed., Oct. 2015) (citing R. LAFOUNTAIN ET AL., NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2009 STATE COURT CASELOADS (2011)), available at https://www.brennancenter.org/sites/default/files/publications/The_New_Politics_of_Judicial_ Election_2013_2014.pdf .
2 Compare N.C. JUDICIAL BRANCH, STATISTICAL AND OPERATIONAL REPORT OF THE N.C. TRIAL COURTS 2016–17, at 3, 6 (reporting filings in district and superior courts from July 1, 2016 to June 30, 2017), with U.S. COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS, tbls. C, D & F (reporting filings in U.S. District Courts located in North Carolina from Mar. 31, 2016 to Mar. 31, 2017).
3 Russell L. Weaver, "Advice and Consent" in Historical Perspective, 64 DUKE L.J. 1717, 1727 (2015).
4 MEBANE RASH WHITMAN, N.C. CTR. FOR PUBLIC POLICY RESEARCH, RECENT HISTORY OF THE MERIT SELECTION DEBATE IN THE N.C. GENERAL ASSEMBLY (May 1, 1997), available at https://nccppr.org/wp-content/uploads/2017/02/Recent_History_of_Merit_Selection_Debate.pdf.
5 Brennan Ctr. for Justice, Judicial Selection: An Interactive Map, http://judicialselectionmap.brennancenter.org (last visited Jan. 18, 2018).
6 Id.
7 DOUGLAS KEITH & LAILA ROBBINS, BRENNAN CTR. FOR JUSTICE, LEGISLATIVE APPOINTMENTS FOR JUDGES: LESSONS FROM SOUTH CAROLINA, VIRGINIA, AND RHODE ISLAND 1 (Sept. 29, 2017), available at https://www.brennancenter.org/sites/default/files/analysis/North_Carolina.pdf.
8 Id. at 4.
9 John Marion, Judging How We Pick Judges: Fifteen Years of Merit Selection in Rhode Island, 15 ROGER WILLIAMS U. L. REV. 735, 736–37 (2010).
10 Id. at 737.
11Id.
12 Id. at 738–40.
13 Anne Blythe, Should NC lawmakers create laws and select judges who review them? GOP senator asks why not, THE NEWS & OBSERVER (Dec. 9, 2017), http://www.newsobserver.com/news/politics-government/state-politics/article188970949.html.
14 Brennan Ctr. for Justice, supra note 5.
15 Brennan Ctr. for Justice, supra note 5.
16 Travis Fain, Senators Roll Out Judicial Appointments Proposal, WRAL (Jan. 4, 2017), http://www.wral.com/senators-roll-out-judicial-appointments-proposal/17230634/
17 THE FEDERALIST NO. 76 (Alexander Hamilton).

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