Politicization of the Judiciary

Dear Readers,  A judge is supposed to be a paragon of virtue, fairly and morally deciding legal disputes, impervious to politics, bias, or personal favor.  It marks the pinnacle of a legal career.

In Georgia, judges can be (often are) first appointed to the bench.  When a judicial term is up, keeping the seat is subject to a public election, with previously appointed judges wearing the garland of “incumbent.”  This is the model in virtually every state (some have a judicial recall or retention process).

As a general rule, incumbents are re-elected to their judicial posts.  It is only the rare “open seat” election where the voters truly have choices, the designation of incumbency being that strong.  This means that the power to appoint can carry enormous sway in shaping the legal philosophical character of the judicial bench writ-large.

At the more local level, trial judges tend to be experienced and successful attorneys.  They often have key roles in the community.  Judicial philosophy is almost absent as a qualifying characteristic amongst trial judges – they just enforce the law as informed by statute or appellate precedent and guidance.  This means a Governor’s greatest opportunity to leave a legacy of setting a judicial agenda is at the appellate level, with the proviso that the people still have a say through their vote.  

This can make judicial elections expensive. It also means that interest groups have learned the lesson over the last half-century or so that they can funnel campaign contributions to influence judicial philosophy. 

In this manner, opposition to abortion begat hotly contested elections, as conservatives sought to pack courts with like-minded jurists hostile to abortion rights.  This political energy expanded to other corners of the law, like corporate rights or opposition to affirmative action.  Judicial elections became less and less about electing the wisest judge and more and more about electing a biased judge.

This had been for decades primarily a conservative movement.  Most progressive activists remained ignorant or dismissive of this trend until it dawned on them they were fighting a political war with cross-bows against bazookas.  Once they perceived the threat, they started modernizing and became powerful champions of their own political principles.  

This is how Wisconsin elected a Democratic Supreme Court Justice to try and undo years of political shenanigans in the state.  Wisconsin flipped its Supreme Court from a Republican majority to a Democratic one; political maps were thrown out, election rules were loosened, and the right to abortion in the state constitution was affirmed.

North Carolina is the mirror reflection of Wisconsin this past election cycle.  A seat on its Supreme Court was hotly contested as the political balance hung in which party’s candidate prevailed.  Allison Riggs, the Democratic incumbent appointed by a Democratic Governor (Roy Cooper), beat her Republican opponent, Jefferson Griffin, by a mere 734 votes out of more than 5.5 million ballots cast. A result confirmed by two recounts.

What did Mr. Griffin do?  Did he accept the bitter result?  Nah, he decided to press claims of voter fraud in the courts, challenging the credentials and ballots for 65,000 voters.  Some of whom were actually elected officials and even Ms. Riggs’ parents; some of whom were overseas voters.  The overseas ballot rules were approved by the bi-partisan (Democratic majority) state Board of Elections and unanimously affirmed a year ago (March) by the Republican-appointed North Carolina Rules Review Commission. 

This has led to legal chaos with competing lawsuits filed in state and federal courts.  The North Carolina Supreme Court has sent everything back to a trial court to hear evidence.  Federal courts are permitting this procedurally while reserving jurisdiction over federal claims.

It’s a mess!  Mr. Griffin’s efforts are not even supported by all Republicans in North Carolina.  Supreme Court Justice Richard Dietz derided the “incredible mischief” caused by asking courts to procedurally undo an election in post-election voter challenges.  Andrew Dunn, communications director for a failed Republican gubernatorial candidate, recognizes the danger of overturning an election by “trying to go back and retroactively disqualify voters who cast ballots in good faith.”

The Kafkian obtuseness cannot be missed; a judicial candidate is trying to manipulate the law to cancel an election because of politics.  This besmirches what it means to be called “judge.”  It is a symptom of a growing danger to perceptions of the fairness of our bench.  This is what undermines our faith in the legal system, an ominous portend to the foundations of our democracy.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.