Per the Raleigh News & Observer, last week former Supreme Court Justice Sandra Day O’Connor, the first woman to serve on the nation’s highest court, was in North Carolina speaking at Elon University School of Law. Justice O’Connor broached a topic very relevant to our state in saying that no state should elect its judges as we do. She claimed that the United States is “way out in left field” because “we are the only nation in the world that elects its judges.” Several states, like North Carolina, elect judges instead of using the system that the national government uses.
Legitimate judicial systems must strike a balance between judicial independence and representation. Certainly our judicial system in North Carolina ought to represent the population of the state, at least to a certain extent, but the judiciary serves the purpose of impartially interpreting the law as well as holding the legislative and executive branches in check. The impartiality of any judiciary is less assured when electoral politics become part of the judicial process, as they do when judges are elected to office as they are in North Carolina. The fear is that if a judiciary is elected, which would result in a supremely representative bench, the judges would be subject to political whims, making decisions to ensure their re-election, and less concerned with the interpretation of the law.
Judicial independence, the wall between politics and judicial decisions that is significantly weakened through judicial elections, allows judges to stay more faithful to their purpose, which is to interpret the law from their expert perspective and not through the lens of the electorate and their next election. The system that the national government uses, where judges and justices are nominated by the President and approved by the Senate, lends itself to a higher degree of judicial independence. That is because judges nominated by the President and approved by the Senate serve life terms and are insulated from political pressure. Even with this isolation, these judges do reflect popular opinion as they are selected and approved by popularly elected representatives of the people.
The importance of the method for judicial selection, which is central to the judiciary itself, cannot be over-estimated. It is in the best interest of our state to ensure that the judiciary is beholden to the law and not to the politics of election cycles. The North Carolina court system decides on issues that vary widely in scope and impact but issues decided by the state judiciary can affect each North Carolinian, including you. Issues such as gay marriage and the death penalty may very well be settled in this state in the courts. The integrity and legitimacy of our state constitution and our state government relies on a competent judiciary that answers to the law and not to politics.
Discussion of competing ideas between judicial independence and judicial representation, the central philosophical debate of judicial selection, is something that ought to be explored. Justice O’Connor has staked out her position on the issue and her addition to the dialogue is important. Hopefully her talk at Elon’s School of Law will spur discussion and debate in North Carolina about judicial independence and judicial representation and our method of selecting judges.
Jason is an intern with the Civitas Institute. Currently enrolled at the University of North Carolina at Chapel Hill, he is studying political science and history.