Last week, former Supreme Court Justice Sandra Day O’Connor, the first woman to serve on the nations highest court, was in North Carolina speaking to the Elon University Law School. She stated that North Carolina, and in fact no state, should elect its judges. She claimed that the United States is “way out in left field” because “we are the only nation in the world the elects its judges.” Several states, including North Carolina, elect judges instead of using the system that the national government uses.
Legitimate judicial systems must strike a balance between judicial independence and representation. Certainly our judicial system in North Carolina ought to be representative of the population of the state, at least to a certain extent, but the judiciary serves the purpose of interpreting the laws as well as holding the legislative and executive branches in check. The fear is that if a judiciary is elected, which would result in a supremely representative bench, the judges would be subject to political whims, making decisions to ensure their re-election, and less concerned with the interpretation of the law. Judicial independence, the wall between politics and judicial decisions that is significantly weakened through judicial elections, allows judges to stay more faithful to their purpose, which is to interpret the law from their expert perspective and not through the lens of the electorate and the next election. The system that the national government uses, where judges and justices are nominated by the president and approved by the Senate, lends itself to a higher degree of judicial independence.
Discussion of these two ideas, the central philosophical debate of judicial selection, is something that ought to be explored. Justice O’Connor has staked out her position on the issue and her addition to the dialogue is important. Hopefully her talk at Elon will spur discussion and debate in North Carolina about judicial independence and judicial representation.