Judicial Debate has Deep Roots | Eastern North Carolina Now

    Publisher's note: This article appeared on John Hood's daily column in the Carolina Journal, which, because of Author / Publisher Hood, is linked to the John Locke Foundation.

    On the question of how North Carolina should select its judges, and especially the justices of the Supreme Court, the state's political leaders expressed sharply divergent views.

    North Carolina should emulate the federal approach by having the governor appoint judges, subject to confirmation by the state senate, said prominent Beaufort County attorney William Blount Rodman. While the legislative and executive branches of a government ought to be elected by popular vote, because they represent "will" and the sovereignty" of the people, respectively, "judges represent neither, but only the justice of the government," Rodman said.

    When judges are elected, he argued, they rise or fall based on their popularity rather than their knowledge of the law. "The judiciary should be proof to any temptation," he warned, "for not infrequent popular clamor has denounced an honest judge for the fearless enforcement of the law, when afterwards, at cooler moments, candid men have confessed a higher respect for him."

    A core problem with judicial elections, Rodman said, is that even conscientious and well-meaning voters have little relevant information about the job performance of incumbent judges or the attorneys who may seek to replace them. The one thing most voters know, at least in the current context, is the party label of the candidate on the ballot. But then "judges become partisans," rather than disinterested jurists, he concluded.

    Another North Carolina leader, Albion W. Tourgée of Guilford County, couldn't disagree more with Rodman. If "the people were best able to govern themselves," he said, if they "were competent to choose officers to make and execute the laws," then surely they were "competent to choose officers to interpret the laws."

    Tourgée, originally from western New York, argued that in his experience the elected judges in that region were excellent jurists - knowledgeable, fair, and just. He added that the potential for corruption exists no matter how a state picks its judges, but it would be greater and more dangerous to the public interest if governors or state legislators, the frequent targets of "notorious bargains and sales," were the ones doing the picking.

    At one point, Tourgée allowed, he would have favored executive or legislative selection of judges. But as he learned more about both the courts and the workings of state politics, he turned into "an ardent advocate of the elective system."

    Washington County politician E.W. Jones expressed yet another view - let the General Assembly pick North Carolina's judges and justices. Popular election has "a tendency to lower the standard of integrity and public virtue" as well as the "intellectual qualifications and talent to fill this office," Jones said. As for governors selecting the judges, he thought it constituted too much "consolidation of power in the hands of any one man." Legislators, Jones concluded, would be less likely to abuse the power of judicial appointment than governors would.

    This spirited debate among North Carolinians about judicial selection could have happened yesterday. As you may have guessed, however, it actually occurred long ago, on February 11, 1868. The debaters I quoted were delegates to a state constitutional convention that would, in the end, recommend popular election of judges. The voters agreed, approving the new constitution in April 1868.

    A few months later, the voters also chose to put William Blount Rodman on the North Carolina Supreme Court - even though he was perhaps the most passionate opponent of judicial elections during the convention. Serving on the high court for 10 years, Rodman became one of the 19th century's most distinguished jurists.

    His main opponent in the convention debate, Albion Tourgée, also became a judge in 1868, winning a Superior Court race. After six years of contending with Klansmen and other racists in a series of high-profile cases, Tourgée moved to Colorado and became a celebrated journalist and novelist.

    "What has been will be again, what has been done will be done again," states the Book of Ecclesiastes. "There is nothing new under the sun." An apt description of debates about judicial selection.