When we get to judge the judges

It didn’t take long to vote at my precinct this morning. The main races on the ballot were three statewide judgeships – the primary for a seat on the N.C. Supreme Court and two primaries for the N.C. Court of Appeals.
It was a reminder that we have a goofy hybrid way of choosing judges in North Carolina.
By law we’re supposed to elect judges, and often we do. But often, judges are appointed to a vacancy and then there’s an election at the next nearest opportunity when voters can either validate that appointment or throw the appointee out and replace the judge with someone else.
Years ago when I worked at the N.C. Center for Public Policy Research, we looked at how every judge in the state –_ district judge on up to chief justice – first became a judge. In an impressive majority of cases, judges first got to the bench by appointment, and then tended to stay a judge even when they ran for a higher judgeship. If memory serves, it was pushing two-thirds of the judgeships.
So we really had an appointive system – just not a formal one. There was no formal pre-screening of candidates, no standard criteria based on merit the governor would have to use in appointing a judge, no confirmation by a legislative authority and no check or balance other than what voters thought at the next available election, which can be a couple of years away in some cases.
That’s one key reason I’ve always thought North Carolina ought to adopt some form of merit selection – with periodic retention elections in which judges would stand for re-election without opposition. If the judge didn’t get, say, 60 percent of the vote, a vacancy would be declared and the merit appointment system would start over.
Unfortunately, Democrats didn’t like the idea when Republican Gov. Jim Martin pushed it. And after Republicans started winning more judgeship elections in recent years, they haven’t been eager to approve Democrats’ proposals for merit selection.
Meanwhile, the cost of judgeships got so high that a bipartisan coalition decided to do something about it. They came up with our current system of nonpartisan elections for appellate judges. It features a voluntary public-financing component that provides money to run on if judicial candidates qualify by raising a threshold amount in small contributions and then agreed to spending restrictions. Some legislators now want to try that kind of financing in a few legislative districts to see if it will reduce the corrosive influence of money in elections for General Assembly.
Meanwhile, the appellate judicial races are under way. Tuesday’s primary featured five candidates for the Supreme Court seat being vacated this year by Associate Justice George Wainwright. Three are running for the Court of Appeals seat held by incumbent Bob Hunter, and three more candidates are running for the seat held by incumbent Linda Stephens, appointed to the seat earlier this year by Gov. Mike Easley.
In this nonpartisan primary, the field for each of those races will be narrowed to two candidates, who will face each other in the Nov. 7 election. But voters didn’t get two votes to determine the two fall candidates. They got to vote for one person in each of the races; the top two finishers in each race will be on the fall ballot.
That’s the same system the state has used for trial court judgeships and for other nonpartisan races such as local school boards, says Bob Hall of Democracy North Carolina.
But it’s a little hinky. It means, for example, that in a three-candidate primary race, one candidate might get 75 percent of the vote, another might get 13 percent of the vote and the other would get 12 percent. That 13-percent vote getter would wind up in the general election along with the 75-percent winner. Messy. But that’s democracy.
Legislators are working on a proposal that could avoid this kind of race. The House last year approved H 1024, a bill to allow for instant runoff voting in up to 10 counties as a trial to see if this produces a better result – or at least saves money by avoiding a costly, low-turnout runoff in other races.
The original version of the bill called for statewide instant runoffs in which voters rank candidates in order of preference, and the winner of a substantial plurality would win the seat. If there is no substantial plurality, the bill provides, there is a second round of counting based on the voter’s ranking of candidates. This may sound complicated, but the original version of the bill spells it out.
So here’s the question: Would an instant runoff, or merit appointment, be a better way of choosing judges than what we have now?