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Convoluted judicial amendment subverts voters

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Chris McCoy

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Saturday, November 3, 2018

Rube Goldberg was famous for designing humorously convoluted machines meant to perform simple tasks. But we doubt he could have dreamed up anything like the complex mess that is the judicial selection constitutional amendment.

Sadly, the amendment doesn’t even have the benefit of being funny — in fact, it’s downright pernicious. It deserves a “no” vote this November.

North Carolina elects its judges — supreme court justices along with appeals, superior, and district court judges. Elections are one way to ensure that judges are accountable to the people for their actions on the bench.

However, it can be impractical to hold an election whenever a judicial vacancy arises in the middle of a term. If that happens, there is a straightforward process — the governor appoints a replacement to serve until the next election more than 60 days after the vacancy. If people don’t like how a judge performs, they have someone — the governor — to hold accountable.

The judicial selection amendment would scrap that in favor of an unelected, unaccountable commission charged with creating a list of “qualified” nominees to fill a vacancy. That list would be handed off to the legislature, which would winnow it to at least two and send those names to the governor, who would select one. If the governor refuses, the legislature picks. These judges could serve up to four years before ever facing the voters.

To be clear, the real power in this process would lie not with any elected officials, but with the commission, which would have sole discretion to determine who is qualified based on as-yet-unknown criteria. That is a problem because, as scholars have shown, what the people want from judges is not always what the legal elites or political appointees serving on judicial commissions want.

Furthermore, such commissions would deprive citizens of any real say while insulating politicians from criticism. If a judge doesn’t work out, the governor can say “My hands were tied” and point to the legislature, which can say “Our hands were tied” and point to the commission, which is beyond the people’s reach.

In other states using them, judicial commissions are dominated by legal special interest groups and have become good ol’ boy networks that nominate commission cronies. State bar associations and trial lawyers have more say than the people — a fate North Carolina should avoid.

Legislators are counting on that zero accountability, particularly if the commission emboldens them to attempt some court packing scheme to shift the court’s balance. In its official summary, the State Board of Elections points out the legislature could add two seats to the state Supreme Court after the election, both of which would be subject to the new commission process (assuming it passes). This is a way to subvert the will of the voters.

While there are no guarantees with a commission, it would certainly improve the odds that the legislature gets nominees more to its liking than what the governor would propose. All the while, lawmakers could avoid accountability by hiding behind the commission’s independence and its evaluation of nominees.

But what should really concern North Carolinians about this amendment is that it is the camel’s nose under the tent. In 1996, a commission studying the state’s court system recommended doing away with judicial elections and moving to a commission system. Earlier this year, lawmakers considered that very idea before settling on this amendment.

While you may need a law degree to understand this amendment, you don’t have to be a genius to see where we could eventually end up if it passes — a commission that replaces judicial elections entirely, leaving citizens with no one to hold accountable. Passing this amendment lays that groundwork.

As a judge might put it, voters should dismiss this amendment with prejudice. That means permanently killing this bad idea with a resounding “no” vote.

Chris McCoy is state director of Americans for Prosperity-North Carolina. Chris W. Bonneau is associate professor of political science at the University of Pittsburgh specializing in judicial selection.

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