Charlotte Observer Blasts DWI
Judge Doug McCullough Again

November 26, 2007

Charlotte Observer...Charlotte.Com

EDITORIALS

Speech and Restraint
What N.C. Judicial Candidates Shouldn't Say On The Stump

N.C. Court of Appeals Judge Doug McCullough's ham-handed remarks not long ago about why voters should support Republican judges next year serve one good purpose: They illustrate vividly the problem with our state's wacky system of choosing judges.

By law, judicial elections are supposed to be non-partisan, just as judges are supposed to be impartial arbiters of the law. But judges are still chosen by election, and judicial candidates have to campaign for office, including raising money to finance their campaigns and telling potential voters why they should support a candidate.

Yet there are limits. An important state judicial canon forbids judges to discuss cases in state or federal courts that may have an impact on North Carolina. It's a good rule. It protects judges from political pressure to promise how they'd vote on an issue that might come before them.

Judge McCullough's remarks in Haywood County seemed to violate the spirit of that canon. He urged voters to reelect a Supreme Court justice who, Judge McCullough implied, could be counted upon to rule against Democrats in the legislature who always approved gerrymandered legislative districts that harm Republicans.

It seems clear to us that Judge McCullough was discussing what he believes will be a forthcoming case, and implied what the proper judicial ruling would be. Any way you look at it, that's over the line. The Judicial Standards Commission does not intend to take formal action against Judge McCullough, but it has made it clear that his remarks should not be repeated.

The Supreme Court justice in question has already disassociated himself from Judge McCullough's remarks. Associate Justice Bob Edmunds, who did not know Judge McCullough would make those remarks, is regarded as an impartial, independent jurist who does not prejudge cases. That's they way it ought to be.

This episode illustrates the difficulty of requiring judicial candidates to campaign for votes, but restricting them from saying anything substantive about issues they think are important.

That's plenty of reason for the legislature to reconsider proposals for a merit selection plan of choosing judges. There are lots of ways to do it. We favor a merit system of choosing judges by gubernatorial appointment, followed by periodic retention elections so voters still have a say whether judges remain in office.

North Carolina already has a de facto appointive system. Most judges first get to the bench by appointment to a vacancy. In subsequent elections they tend to stay or move up to higher judicial posts. Since we already have in effect an appointive system, why not create a process to ensure that the appointments are made on the basis of ability and experience, not simply politics?