Courts & the Law, Defending Democracy, News

Report calls for state supreme court reform, including in North Carolina

The Brennan Center for Justice has released a new report calling for reform to state supreme courts, particularly where high-cost elections have become the norm.

“The U.S. Supreme Court isn’t the only institution roiled by a highly politicized judicial selection process,” a news release Thursday stated.

The report from the nonpartisan law and policy institute, “Choosing State Judges: A Plan for Reform,” focuses on the whole country, urging states to abolish elections for state supreme court justices and instead adopt a transparent, publicly accountable appointment process. It also calls for the adoption of a lengthy single term for state supreme court justices, along with other reforms designed to rein in the role of money and politics in state courts.

“At a time when the broken process for confirming justices to the U.S. Supreme Court is in sharp focus, safeguarding state courts from inappropriate political pressure should be urgent business,” said Alicia Bannon, author of the report and deputy director of the Brennan Center’s Democracy Program. “State judicial elections used to be subdued affairs. No more. They are now awash in outside cash, dark money, and special interests that threaten the independence of the judiciary. It’s time to do away with supreme court elections and move toward a more independent, more accountable process.”

North Carolina elects judges in partisan races. Lawmakers considered judicial merit selection plans over the past year, but most were considered “window dressing” for legislative judicial appointment plans. Similarly, there is a constitutional amendment on the ballot in November for a judicial legislative appointment process for judicial vacancies, though it is described as a merit-based process.

“You’ll see that while we believe the NC system needs reform, we believe the current ballot measure up for consideration this November is actually the wrong approach,” a Brennan Center spokesperson said in an email. “As our report outlines, research shows the ballot measure’s suggestion of legislative control over judicial selection actually undermines public accountability and opens the door to backroom deals and corruption.”

North Carolina is also one of several states the Brennan Center is watching for dark money expenditures on the state Supreme Court race. This year’s is expected to be contentious with two Republicans, one of whom is an incumbent, and a Democrat on the ballot.

The state saw $5.4 million in spending the 2016 election of now Justice Mike Morgan, which shifted the court’s ideological balance to the left. $4.7 million of that spending was from outside groups that partially or completely conceal their donors.

The Brennan Center’s research has shown that million-dollar campaigns for state supreme court seats are fast becoming the national norm. Dark, untraceable funds are flooding judicial races, and national political groups and business interests regularly pour money into these campaigns.

The research shows that one third of all elected state justices have been through at least one million-dollar race, and 90 percent of voters believe campaign cash affects judicial decision making.

Here are the recommendations from the latest report, which is the culmination of a three-year research project:

• The 38 states that have elections or retention elections for state supreme court justices should eliminate them.
• States should adopt a publicly accountable appointment process where an independent, bipartisan commission vets candidates and creates a shortlist for appointment by the governor.
• Those commissions should have transparent procedures and clear criteria for vetting candidates, and their membership should be bipartisan, appointed by diverse stakeholders, and include non-lawyers.
• State justices should serve for a single, lengthy term rather than face elections or a political reappointment process to retain their seats.

“The voice of the people is crucial in helping determine who sits on our courts,” Bannon said. “But the research is clear: elections and the money that pours through them undermine judges’ ability to perform their constitutional functions. Judges are meant to be independent arbiters of the law. Our proposals help ensure they can do their jobs fairly and equitably.”

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