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As Sharon McCloskey reported in this space yesterday, the the U.S. Supreme Court handed down a modest victory for democracy this week when it said that states can ban direct campaign solicitations by judges. Would that North Carolina would join the list of states to do so.

What was perhaps the most amazing thing about the Court’s ruling, however, was Chief Justice John Roberts’ rationale. Ian Millhiser of Think Progress explains:

“Chief Justice John Roberts’s opinion for the Court in Williams-Yulee is certainly better for campaign finance regulation than a decision striking down this limit on judicial candidates — had the case gone the other way, judges could have been given the right to solicit money from the very lawyers who practice before them. Yet Roberts also describes judges as if they are special snowflakes who must behave in a neutral and unbiased way that would simply be inappropriate for legislators, governors and presidents:

‘States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such ‘responsiveness is key to the very concept of self-governance through elected officials.’ The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must ‘observe the utmost fairness,’ striving to be “perfectly and completely independent, with nothing to influence or controul [sic] him but God and his conscience.” As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.’

Most Americans would undoubtedly agree that judges should not ‘follow the preferences’ of their political supporters, as they would agree that judges should not ‘provide any special consideration to his campaign donors.’ But the implication of the passage quoted above is that members of Congress, state lawmakers, governors and presidents should provide such consideration to their supporters and to their donors. The President of the United States is the president of the entire United States. A member of Congress represents their entire constituency. Yet Roberts appears to believe that they should ‘follow the preferences’ of their supporters and give ‘special consideration’ to the disproportionately wealthy individuals who fund their election.”

Sadly, as Millhiser concludes, the view that it’s okay for donors to buy politicians is at the heart of the Court’s unabashed ruling in the infamous Citizens United decision. What’s bizarre about this week’s ruling is the Court majority’s apparent obliviousness to their own hypocrisy when it comes to donors buying judges.

News

Supreme courtIn an opinion with implications for those states where judges are elected, the U.S. Supreme Court ruled today in a plurality opinion that states can ban direct solicitations.

In the case out of Florida, Williams-Yulee v. Florida State Bar, lawyer Lanell Williams-Yulee landed in hot water with the state bar after, in connection with her candidacy for a county judgeship, she sent out a mass mailing with her signature asking for contributions.

Williams-Yulee challenged a state law banning direct requests for money by judges, saying it violated her First Amendment freedom of speech, but the Florida Supreme Court disagreed, saying that the prohibition was “one of a constellation of provisions designed to ensure that judges engaged in campaign activities are able to maintain their status as fair and impartial arbiters of the law.”

Of the 39 states that have some form of elections for judges, 30 prohibit judges from personally soliciting campaign contributions.

That’s not the case in North Carolina — one of the nine states which allow judicial candidates to directly ask for campaign contributions from attorneys and law firms as well as other members of the public.

That’s been the law here since 2003, when according to a report by the Brennan Center for Justice, the justices of the Supreme Court radically revised the rules of judicial conduct, without any input from the public:

North Carolina not only turned the political activity regulations on their heads—changing the basic canon from “A judge should refrain from political activity inappropriate to his judicial office” to the current “A judge may engage in political activity consistent with his status as a public official”—but also eliminated the Pledge or Promise Clause and the ban on candidates’ personally soliciting campaign contributions.

(The Pledge or Promise Clause prohibits judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performances of the duties of the office.”)

The current judicial code of conduct allows judges to speak at political party events, personally solicit contributions, identify themselves as affiliated with a particular party and otherwise engage in activities “consistent with the judge’s status as a public official.”

Read more about the implications of the Williams-Yulee decision for North Carolina here.

Commentary

The list of counter-productive proposals on Jones Street has been expanding rapidly in recent days and both the Charlotte Observer and Greensboro News & Record have new essays blasting one that’s already been approved by the state House: the idea of partisan elections for judges (and even school board members!).

Here’s the N&R in an editorial entitled “No need for parties”:

“No matter the motives, North Carolina made a wise move in 2004 [when they made judicial elections non-partisan]. Nonpartisan elections, and officially nonpartisan courts, really do reduce the kind of hyper-partisanship that we have in state and federal legislative bodies. Judges should not line up with their political parties when deciding cases. Voters may perceive partisan differences on the courts, and rulings may break along party lines sometimes. For the most part, however, partisan distinctions aren’t apparent on our state’s highest courts.”

And here’s veteran Republican attorney John Wester writing in the Observer in an op-ed entitled “Don’t further politicize judiciary”: Read More

News

vote2According to the Winston-Salem Journal, Mike Robinson will ask the state Board of Elections for a recount in his Supreme Court race against Justice Cheri Beasley.

“Robinson told The Associated Press on Wednesday that he intends to request a recount after the State Board of Elections certifies the election results,”  the Journal reported.

(The Robinson campaign has not yet returned a call to confirm the candidate’s intentions.)

The latest posted results from the SBOE show Beasley with 1,228,439 votes and Robinson with 1,225,298.

State law allows a candidate in a statewide race to request a recount when the difference between the votes cast is one-half of one percent (0.5%) or 10,000, whichever is less.

Robinson can submit his request at any time up until noon November 18, which is the second business day after the county canvass — when the counties approve their results as “official,” according to SBOE Public Information Officer Josh Lawson.

Any recount would occur after the county canvass, with a decision possible before Thanksgiving.

Commentary

In case you missed them, two commentaries on the main Policy Watch website from earlier today are worth a look this afternoon.

In today’s “Monday numbers,” Chris Fitzsimon lists some of the latest sobering numbers surrounding the unrepentant efforts of Senator Phil Berger, Rep. Paul Stam and some other troubled souls to block enforcement of the law in North Carolina when it comes to marriage equality. Example:

4—number of says since Fayetteville minister Johnny Hunter said at Rep. Stam’s news that John Arrowood, a candidate for the N.C. Court of Appeals who is gay, is a “flaming homosexual” who should drop out of the race (“Fayetteville minister says openly gay judicial candidate is ‘biased’,) WNCN-TV, October 23, 2014)

0—number of times that Rep. Stam has publicly condemned the comments or openly expressed his disagreement with them

Meanwhile in “Judgeships crowd ballot with bubbles,” commentator Steve Ford of the North Carolina Council of Churches explores the wackiness of the ballot that North Carolina voters are now tackling across the state (which includes a Court of Appeals race with 19 candidates for one office). As Ford notes:

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