A STRONG BENCH
Facing down the ghost of Andrew Jackson, Jim Exum ’57 and Buddy Wester ’68 take up the fight to reform judicial elections.
For declarations of judicial independence, it’s hard to do better than the chief justice of the United States Supreme Court.
“I come before the committee with no agenda,” John Roberts said during his 2005 confirmation hearings. “I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes.”
That’s easy for him to say. Roberts, like all federal judges, was appointed by the president and confirmed by the U.S. Senate. So long as he meets the constitutional standard of “good behavior,” he will remain a justice until the day
he dies or decides to resign.
State judges, however, face a very different path to the bench. In North Carolina and most other states, judges earn their robes not by appointment but by popular ballot. It’s an odd quirk of American federalism; almost nowhere else in the world are judges elected.
“North Carolina, like almost all states, began by appointing judges,” said Michael Crowell, a professor at UNC’s School of Government. “Beginning in the Jacksonian era and going up through the Civil War, states changed over to
electing judges.”
And pretty much ever since, lawyers and judges have been trying to change the system back.
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Jim Exum ’57 looks the part of an elder statesman. On the day we met at his Greensboro office, the former chief justice of the N.C. Supreme Court wore a dark suit, a classic fedora, and the stoically patient expression of a man who has spent far too many years trying to hammer the square peg of common sense into the round hole of public opinion.
“Most of my adult life, I’ve been pushing reform,” he said. “I knew this was going to be a serious commitment, but it’s something dear to my heart.”
Exum, now heading up the appellate practice group at Smith Moore Leatherwood, is one-half of the Morehead-Cain duo leading the N.C. Bar Association’s latest campaign to reform judicial elections.
His partner in the effort is Buddy Wester ’68, one of the state’s top trial lawyers and fresh off a one-year term as president of the Bar Association. “They’re calling us ‘Shock & Awe,’” Wester quipped of himself and Exum. “I’ll let you guess which one is which.”
It’s not hard to argue a case against judicial elections, and both Wester and Exum can easily recite the damning facts.
Polls show the vast majority of voters know little or nothing about judicial candidates; far fewer people bother to vote for judges than for the offices at the top of the ballot; and candidates with recognizable names regularly win after being confused with celebrities. North Carolina Supreme Court Justice Mark Martin, for instance, was widely confused with NASCAR driver Mark Martin during his campaign.
“People do have an interest in who serves, for sure,” Wester said. “But they just don’t know who the candidates are. If they know their names, they don’t know sufficient detail about them.”
And as Exum points out, the business of impartial jurisprudence doesn’t lend itself well to traditional politicking. Judges are meant to be insulated from political pressure, yet periodic elections put them in the position of currying favor with donors and supporters.
A 2004 election for the West Virginia Supreme Court of Appeals attracted international media attention when the CEO of Massey Energy spent more than $3 million of his personal fortune to back a challenger to the sitting chief justice. The company had a case on appeal to the court, and the money was widely seen as buying a friendlier bench.
North Carolina has so far avoided a similar scandal, but Wester said it’s only a matter of time before the current system creates at least the perception of corruption.
“For a long time, people have said, ‘There’s nothing broken, so why fix this?’” Wester said. “Well, there really are some things broken.”
Even in the best of circumstances, campaigns for judicial office tend to be deeply odd affairs.
Candidates canvass the state, glad-handing voters and making earnest campaign speeches. Bumper stickers are printed, yard signs planted, and flyers mailed. Newspapers conduct interviews and editorial boards make endorsements.
And yet, for all the trappings of a normal political campaign, almost nothing is said. No issue ads, no rousing declarations of support or opposition for laws, no concrete views of any kind.
“There’s a little dance that goes on,” Professor Crowell said. “Judges can talk in general terms about how they feel about particular legal issues or their philosophy. What they can’t do is spell out how they would decide a particular case.”
In last year’s campaign for the N.C. Supreme Court, candidates Bob Hunter and Barbara Jackson were both interviewed by the Charlotte Observer, and the exchange offers a telling window into the strange decorum that prevails in most judicial elections.
“Running for the supreme court is not like running for governor,” Jackson told the paper. “It is not reasonable to set an agenda per se.”
Asked to critique a previous supreme court case, Hunter felt compelled to punt. “I cannot comment on issues that may come before me in a case, even on theoretical grounds,” he said. “Doing so would violate what I consider to be intrinsic to an open judicial process.”
Exum, who served in the N.C. House of Representatives before joining the bench, sees that kind of careful hedging as an indication that judges don’t belong in the political arena.
“Running for the General Assembly, you can make promises and tell people your plans,” he said. “For a judge, you can only promise to be impartial, to work hard and be industrious. After you’ve said this three or four times, it gets a little tiresome.”
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Pushing for reform is apt to get a little tiresome, as well. Wester and Exum face a Sisyphean task—the Bar Association has been lobbying for decades to amend the North Carolina constitution, hoping to replace the current system of judicial elections with an appointive process.
No proposal has ever cleared the legislature, and most have met a quiet death in either the House or Senate
judiciary committees.
“The central reason for that is that people, although uninformed about the voting for judges, don’t want to surrender the right to vote,” Wester said. Politicians are particularly unsympathetic to the idea that campaigning has a corrosive effect on the judiciary. Exum noted that the indignities of running for office—particularly fundraising—dissuade a lot of
good lawyers from pursing judgeships. But that’s not an argument likely to win support in the legislature.
“The people we have to persuade are themselves politicians,” Exum said. “They are attuned to the political process, and they like the political process.”
Nonetheless, the Shock & Awe duo are hoping this year will be different. Instead of waging a frontal assault on the wisdom of electing judges, Exum and Wester are putting forward a somewhat complex compromise.
Instead of open elections, the Bar Association plan would create a nominating commission to vet and select two candidates for any open seat on the state bench. Once approved by the nominating commission, those candidates would face off in a general election.
“I believe the commission will find those people in whom they see the qualities of civility and rectitude for the dignity of the bench,” Wester said. “We’ve got serious problems and we need serious people to solve them.”
Once elected, a judge would never be subject to a direct challenge from another candidate. Instead, he or she would face retention elections, in which voters cast a simple yes-or-no on whether to retain the judge for another term.
“Our system is a hybrid,” Wester notes. “Exum and I listened to a lot of people and thought this was the best shot we have.”
Exum and Wester have assembled an impressive team of legal eminences to push for the plan, but it is not universally favored within the state’s legal community. Minority lawyers’ associations have voiced concern that a nominating commission would be an opaque process favoring well-connected attorneys.
There is also a robust argument, already heard in nomination fights at the federal level, that judges are political actors, whether they want to be or not. In 2004, UNC professor Kevin McGuire published a widely cited research paper showing that Supreme Court rulings tend to hew closely to public opinion, despite the independence of lifetime tenure.
But the biggest obstacle to state-level reform is likely to be a charge of electoral elitism. It’s never easy to tell voters what’s best for them. As Professor Crowell put it, “People will defend their God-given right to elect people they’ve never heard of.”
The Founding Fathers didn’t worry quite as much about annoying the electorate. Writing in the Federalist Number 78, Alexander Hamilton wasn’t shy about the reason for lifetime appointments to the federal bench.
“The independence of the judges,” he wrote, “may be an essential safeguard against the effects of occasional ill humors in the society.”
Wester and Exum, for their part, are counting on a spell of good humor as they work to build a better bench. ◆
Originally published in The Scholar, the alumni magazine of the Morehead-Cain Foundation at UNC Chapel Hill.
See full issue here (pdf).