Which Judge, Who Votes, and When are Confirmation Hearings?


The signs as I was coming home from this symposium.
The signs as I was coming home from this symposium.

Yesterday, I was at the Elon Law Review Symposium on The Judicial System’s Role in Contemporary American Society. It was a timely topic because the panels were about the election of judges, voting rights, and the line between judicial rulings and politics.

Should We Be Electing Our Judges?

It was discussed that there is a tension between an independent judiciary and voting dynamics. Popular elections help ensure this independence in the sense that a judge elected by the people is not beholden to an individual government official for his or her appointment to that job. On the other hand, the role of money and large financial donations following the Citizens United case was recognized as equally problematic – simply swapping out a government official for a commercial interest as the entity potentially holding the reins of undue influence. In all of this, it was recognized that even if there is no undue influence on a judge’s decisions, the public perception of independence factors significantly into the legitimacy of our judicial system.

If we were to appoint our judges, instead, how would members of the selection committee be chosen? The same issues are involved.

Hon. Paul Newby
Hon. Paul Newby

What about the inclusion of party affiliation of judges on the ballot? That does not sit well with me because it seems at odds with voting for individuals in the judiciary. However, mention was made about factors in voting behavior: name recognition, placement on the ballot (top or bottom of the list), and the research that voters may or may not do for these positions. The reasoning for including party affiliations of judicial nominees is to provide a quick indicator of at least something about the candidate.

I have to admit, my 2016 ballot asked me to vote my preferences for 29 types of positions. County commissioners and the school board members had multiple slots to fill, so it was actually about 35 positions that were potentially up for my vote. Five spots were unopposed, so it brought it back down to 30. There were 65 to 67 candidates for those 35 positions (2 qualified write-in options). That is a lot. I did do my research, but it took a lot of time.

Voting Rights

I wish I had taken a course in election law while in law school.

Drawing voting districts has received a lot of attention in North Carolina, for good reason. It is more complicated than I realized, and decisions have collateral ramifications.

We want to make sure our government (all branches) are representative of the people. So, one dimension of voting district creation is to make sure minority populations have the opportunity to see their vote, as a group, result in representation. But, those decisions also end up polarizing elections because districts become smaller (thus, promoting catering to smaller group interests), all districts must be treated equally (so all districts in the state become smaller), and over time there ends up being changes in party representation, as well.

Hon. Robert Hunter and Michael Crowell, whose contributions I also greatly appreciated.

In addition, new technology has enabled data collection to a much more precise level, allowing for sophisticated manipulation on boundary placement. Changes in how census blocks have been designated have also led to more artificial groupings for districts rather than districts based on naturally occurring “communities of interest.” The Honorable Robert Hunter (somewhat) jokingly recommended that the legislature go back to hand drawing district maps rather than digitally creating them. He also recommended Dave’s Redistricting App if you want to try your hand at drawing fair and equitable voting districts.


Judicial Relationship to Politics and Policy

This section was actually partially titled Judicial Activism, but all the panelists agreed that phrase is more a political weapon used to describe a decision that the speaker does not like. If a decision is liked, it is right. If a decision is not liked, it is an example of judicial activism.

Listening to this panel was a lot like being back in law school, in a good way. There was discussion of Constitutional law and of the significance of the Supreme Court vacancy (there has not been a Democratic majority on the Bench since 1969). This is the longest period of time in American history without even confirmation hearings.

Professor Michael Gerhardt advocated getting past the rhetoric and look at actions of governmental actors and candidates because what they think is not always clear from what they say. “What are they talking about? What do they mean when they say things?” He continued that we should “engage our leaders in discussions and encourage them to think deeply.”

In fact, discourse emerged as an important theme in the symposium. Professor Amos Jones noted that minority groups, with respect to political power (and this changes over time), have to “engage with the people who have the power and navigate that to find common ground.” They have to become adept at using the skills of persuasion.

There was so much more to this symposium that I have not captured here.

Left to right: Amos Jones, Evan Bernick, Michael Gerhardt, William Marshall.
Left to right: Amos Jones, Evan Bernick, Michael Gerhardt, William Marshall.

Because I love book recommendations, I will give you some that came out of the symposium. I have not read any of these, yet.

Honorable Robert Hunter:
The Right to Vote by Alexander Keyssar
A Fool’s Errand, by One of the Fools by Albion W. Tourgee

Professor Michael Gerhardt:
Democracy and Distrust by John Hart Ely
Active Liberty by Supreme Court Justice Stephen Breyer

Panelist Justin Wedeking presented interesting data that I believe is included in his book Supreme Court Confirmation Hearings in the US Senate.

Kay Hagan getting her CLEs in.
Kay Hagan getting her CLEs in.