Judicial Vacancies

2018_08_NixAllSix_LOGO_(1).pngAmendment “Judicial Vacancy Sunshine Amendment” 

Ballot language: Constitutional amendment to implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges to be selected to fill vacancies that occur between judicial elections.

Key points:

- The language is deceptive, masking the true intent of the amendment: to further concentrate power in the General Assembly, weakening the courts and the governor.

- Judicial qualifications are already defined by the NC Constitution.

- The governor’s authority to fill judicial vacancies would be undermined. (The governor has that authority now because the governor is elected statewide and judicial vacancies occur across North Carolina.)

- A highly partisan process would be created, allowing the political party in power in the General Assembly to submit nominees, appoint the commission, select the candidates, and require the governor to choose one of them.

- The local bar would be removed from the selection process.

- The governor would be prevented from vetoing any bill, regardless of other content, that contains a judicial appointment.

Voters will be asked to vote on six amendments to the North Carolina Constitution in November. They are all unnecessary, unprecedented, and politically motivated. We need to nix all six. It’s unclear who will write the final ballot language, but the current language is “Constitutional amendment to implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges to be selected to fill vacancies that occur between judicial elections.

This amendment originated as Senate Bill 814 and creates a new process for filling vacancies for state courts between elections. It undermines the separation of powers by giving a handful of politicians the power to cherry pick judges, and it jeopardizes the independence of our courts. It’s also a cynical power grab intended to strip the governor of the power to appoint qualified judges when a vacancy on the bench occurs. Once it’s written into the NC Constitution, it will be difficult to undo.

What happens when a judge retires, dies, or when a new judgeship is created between elections? Currently, the governor appoints judges to vacancies on state courts from a list of five nominees recommended by a bipartisan local bar. The governor has that power because she or he is elected statewide and because judicial vacancies occur all across the state. According to Senate Bill 814, however, the constitutional amendment would “implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges to be selected to fill vacancies that occur between judicial elections.” Sounds good, doesn’t it? It’s meant to. Who could object to a “nonpartisan merit-based system that relies on professional qualifications instead of political influence”?

In fact, the language is misleading. The amendment would set up an entirely different process. When a judicial vacancy occurs between elections, due to retirement, death, or the creation of a new judgeship, a “nonpartisan judicial merit commission” would be asked to evaluate nominees to fill that vacancy. The commission bypasses the local bar and would determine who is “qualified,” even though the qualifications for judges are already spelled out in the North Carolina Constitution. Senate Bill 814 does not say what additional criteria for determining “merit” or evaluating qualifications would govern the commission’s work. Once the commission has evaluated the nominees, the General Assembly would provide the governor with at least two “qualified” nominees from which a judge must be chosen to fill the vacancy. In other words, this is a highly partisan process that allows the political party in power in the General Assembly to submit nominees, appoint the commission, select the candidates, and require the governor to choose one of them.

The amendment would also prevent the governor from vetoing a bill, regardless of its content, that contains any judicial appointments.

There is a dangerous bait-and-switch at work here. Republicans claim that the process promotes transparency, but in fact, it is a partisan process entirely controlled by the majority party in power in the legislature. Though the governor has a role, the selection will already have been made before the names reach the governor’s office. “Merit” and “nonpartisan” have little to do with how the process will actually work.

The proposed amendment also disguises a more dangerous assault on the courts. Let’s suppose that the amendment passes and the Republicans continue to hold the majority in the General Assembly. Legislators could then vote to add two seats to the NC Supreme Court and use their new powers to fill the new but “vacant” seats with Republican judges.

According to Melissa Broughton of NC Policy Watch, Sen. Floyd McKissick (D-Durham) said that the language of this amendment misleads the public, and that if lawmakers want to pass a judicial selection amendment, they should be clear and unambiguous about it. “This amendment, the way it is, it’s a fraud,” McKissick said.

Melissa Price Kromm, Director of the NC Voters for Clean Elections Coalition, testified that “Clearly, this is just another attempt by this legislature to put forth constitutional amendments to give the legislature more power and control.” She added, “When the people vote on this amendment, they will know this is about giving the legislature power to choose judges in vacancy situations. . . . Justice may be blind, but the people of North Carolina will see right through this long-term scheme to take away our right to vote for judges.”

Voters need to reject this amendment to maintain fair and impartial judges and an independent judiciary. Vote against the “Judicial Vacancy Sunshine Amendment”!

Sources

https://www.ncleg.net/Sessions/2017/Bills/Senate/PDF/S814v4.pdf

https://ballotpedia.org/North_Carolina_Judicial_Selection_for_Midterm_Vacancies_Amendment_(2018)

https://medium.com/@Jeff_Jackson/a-close-look-at-the-six-constitutional-amendments-on-your-ballot-43a77714dbfc

http://pulse.ncpolicywatch.org/2018/06/26/senate-passes-victims-rights-judicial-vacancy-selection-constitutional-amendments/

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