If asked to identify a symbol for justice, most of us would picture a blindfolded Lady Liberty holding aloft a balance scale in one hand and a sword in the other. The sword declares that justice is worth fighting for, the scale demonstrates justice is balanced and the blindfold signifies that justice is blind to race, sex, class, nationality or partisan prejudice.
The question of partisanship in our courts is frequently being raised. Time and again you hear that a case was decided by “a Democratic court,” or a set of “Republican judges.” As one who has been following and commenting on public affairs for almost a half century, there are an increasing number of times when I feel charges of partisanship are justified. If true, this is a sorry commentary on the state of justice.
Take the case now before our courts on redistricting. Anyone not a fervent card-carrying member of the Republican Party can look at those maps and concur that they were drawn so as to keep a large plurality of North Carolina’s congressional and legislative delegation in Republican control. A panel of three Superior Court Judges, two Republicans and one Democrat, agreed the districts were gerrymandered.
In their ruling they said, “This court has not been asked to eliminate all partisan gerrymandering, only ‘extreme’ partisan gerrymandering. In short, we are asked to decide how much partisanship is ‘extreme.’” In unanimously allowing the maps to remain, they decided they were unable (and unwilling) to make such a declaration.
Appeals are now heading to the ful North Carolina Supreme Court, and already Republicans are screaming partisanship, since our highest court has four Democrats and three Republicans. The GOP expects the maps will be declared unconstitutional and require new maps to be drawn.
An initial solution to judicial partisanship would be to repeal North Carolina law requiring judicial candidates to list their party affiliations. The biggest justification given for reinstating the party affiliation was because people did not know anything about judicial candidates on the ballot and at least could vote for a member of their own party. As an aside, unaffiliated voters now outnumber Republicans in our state and, if current trends continue, could soon outnumber Democrats. Yet on judicial election ballots there is no way for a candidate to list he or she is unaffiliated.
I don’t want my court case decided by either a Republican or Democratic judge. I want a jurist who is blind to whatever party I might be a member and decides the case based on state law, case law and our Constitution.
Let’s not whitewash the issue of partisan courts. We are essentially reducing our courts to being yet another partisan political tool. George Washington, in his Farewell Address, warned us about the pernicious danger of political parties. Current reality is proving his admonition true.
This reopens the subject of how we put the best jurists on our bench. We are so jaundiced that we don’t trust any administration, any legislature or, for heaven’s sake, any group of currently robed judges to make such a decision. Instead, we choose primarily by what party they have beside their name.
Yes, I value and uphold the power of the public at the ballot box, but to tell the truth we aren’t qualified to make informed selections regarding judges. For Pete’s sake, we don’t even know who they are. We want our judges to be lawyers, to be students of the law who will research case law and who are imbued with large doses of common sense and wisdom.
Thirty-nine states have some form of judicial election; in 38 they elect those on the highest court. Fourteen states have nonpartisan judicial elections. Ten states’ high court judges are selected by gubernatorial appointment. Some are appointed for life or until they reach a certain retirement age. Another side issue: our state’s mandatory judicial retirement age is 72. That age may have been appropriate 40 or 50 years ago, but most 70-year-olds today are still very much in their prime. The mandatory age needs raising.
The real issue is that North Carolina doesn’t have a good solution to judicial selection. Regardless, there’s no place on the bench for political partisanship. Bring back Lady Liberty’s blindfold.
Tom Campbell is a Hall of Fame North Carolina Broadcaster and columnist who has covered North Carolina public policy issues since 1965.