Just because something is legal, does that make it right?
That’s a question voters may want to ask about this year’s judicial candidates. And the answer may come in the form of deeds, not words.
On the one hand, a slew of influential special-interest groups flood judges’ mailboxes with questionnaires aimed at praising or pummeling them based on their personal beliefs on hot-button issues, baiting them to promote an agenda.
On the other hand, how much confidence can the public have in judges who have already stated how they’ll rule before hearing even a minute of evidence in a case? It’s a tricky situation, requiring judicial candidates to step nimbly along the campaign trail. Traditionally, judicial candidates were restricted from leaping into the political storms bellowing in the public square.
Since the late 1980s, North Carolina has allowed judicial candidates to announce their personal views on issues, something other states had generally prohibited. Most candidates refrained from doing so, however, because they didn’t want anyone to confuse a personal belief with a promise of how they might rule in a case.
Voters want information about candidates, but most voters also want a judge who is fair and who will judge each case independently on the evidence, not on their own beliefs. People want judges who will uphold the Constitution. They don’t want judges who “legislate from the bench” or who use their position to push an activist agenda.
But a 2002 U.S. Supreme Court decision found that the right to free speech includes judicial candidates’ right to declare their personal views on any topic they choose, no matter how volatile or likely to come before their bench. And subsequent lower-court rulings have suggested that judges might be able to go even further.
Then-North Carolina Chief Justice I. Beverly Lake Jr. said the ruling made it clear that “If you are going to have judicial elections, you cannot deprive the candidates of their constitutional right to participate in the political process.”
But while candidates for the court may be just as free to say what they wish as those vying for the state House or the governor’s mansion, their prospective office requires them to be more prudent in how they exercise that right. Indeed, if judges are no different from lawmakers and governors, why are they the only ones who wear robes to work?
The truth is, judges’ public comments can undermine their credibility and sabotage their ability to do their job in a way that other politicians needn’t fear.
Former U.S. Supreme Court Justice Felix Frankfurter illustrated this when he observed, “The court’s authority — possessed of neither the purse nor the sword — ultimately rests on sustained public confidence in its moral sanction.” That confidence is based on the belief that judges will decide cases fairly, guided only by the law and not by their own whims and wishes.
A study commissioned last year by the nonpartisan N.C. Center for Voter Education found that 55 percent of Tar Heel voters believed that “Judges too often make decisions based on their own beliefs, rather than on the Constitution and the laws passed by the state Legislature.” That undesirable number would no doubt rise if North Carolina’s judicial candidates began campaigning on their own personal agendas.
This spring, I hosted a series of interviews on State Government Radio with nearly every candidate running in the May primary election for the N.C. Supreme Court and N.C. Court of Appeals. What impressed me was that all of the candidates — whether personally conservative or liberal — preferred to keep their private views separate from their public service as judges. Even if a few hinted at a personal opinion or philosophy, they all emphasized adherence to the rule of law.
It’s not that these candidates are trying to deceive the public by hiding their personal beliefs. It’s that they correctly hold that judges should leave their own opinions at the courthouse door and follow the constitutions of North Carolina and the United States.
Unquestionably, voters need information about judicial candidates before they cast their ballot. But special-interest questionnaires designed to push candidates into a political pigeonhole are not the way to go.
The best candidates for judge are the ones who will exercise great wisdom and prudence. It may be legal for them to campaign on an activist agenda, but I would urge voters to judge the candidates by what they do, not just what they say.
It may not make for the kind of explosive campaigns we see for senator or governor, but leaving the political agendas outside the courtroom makes for fair courts worthy of the public’s confidence.
[Chris Heagarty is executive director of the N.C. Center for Voter Education, a Raleigh-based nonprofit, nonpartisan organization dedicated to improving elections in North Carolina.]