Appointment vs.
Election: Selecting
Judges and Justices
in North Dakota
By Carol Kapsner
The process of selecting judges and justices
is on everyone’s minds these days. I’ve
pondered the advantages and pitfalls of the
methods used, both at the state and national
levels. Having been appointed to the bench,
followed by a contested election and an
uncontested election, I offer my thoughts
on the North Dakota process. I believe
appointment is a better way of first achieving
the bench, but I would not eliminate the
direct election of judges.
In many ways, the appointment process
recognizes realities for the practicing
lawyer who is interested in becoming a
judge. It involves a finite period of time
for submitting materials to the judicial
nominating committee, being investigated,
being interviewed by the committee, and, if
passed on by the committee, waiting for the
governor’s choice. It involves little expense
and little disruption to the lawyer’s practice.
It is far less public than the election process,
so clients and potential clients are less likely
to be influenced by the thought the lawyer
may be unavailable for client and future
client needs. All are legitimate concerns from
the lawyer’s perspective.
From the viewpoint of arriving at the best
judges, the nominating committee has
several advantages. The composition of the
nominating committee brings differing
perspectives to the selection of names to
forward to the governor. The governor, the
chief justice, and the president of the bar
association each appoint two “permanent”
members, one of whom is a judge or attorney
and one of whom may not be a judge or an
attorney. The term “permanent” only means
those members act on all vacancies during
their term. The permanent members select
the names to forward to the governor as
prospective justices. The same appointing
persons each add an additional member
when selecting a district court judge, and
this additional person is from the district
in which the judge is to sit. The whole
committee forwards the names of prospective
district judges. The method of appointment
to the nominating committee provides public
and local input into the selection of potential
judges.
Retiring SBAND Executive Director Bill
Neumann promised incoming Director Tony
Weiler that acting as secretary to the judicial
nominating committee would be a minor
part of his job. In fact, it has proven a huge
task. The turnover in the judiciary has been
enormous since Jack Dalrymple became
governor, and the judicial nominating
committee has had to deal with most of
these replacements.
The committee is diligent in its investigations
of the applicants; it is specifically authorized
to “make inquiry into the qualifications
of each candidate.” I have received several
calls regarding applicants. The questions
asked were pertinent. They dealt with the
applicant’s intellectual capability, whether
the applicant had an appropriate work ethic,
did his or her work in a timely manner,
treated people respectfully, and could handle
a stressful work situation in a restrained
manner. No committee member ever asked
the kind of question the electorate seems to
want to know: What is a candidate’s party
affiliation or what is a candidate’s position on
the current “hot button” issues?
Although I can only speak to my own
interview before the nominating committee,
I left feeling it was an interesting mix of
exploring the potential for conflicts, such as
financial conflicts and biases, and exploring
how fully I had developed my own judicial
philosophy. Since the interview is conducted
before the entire committee and the names
submitted to the governor must be agreed
upon by a majority of the members of
the committee, the interview has to be
considered significant in the nomination
process.
The investigation and interview regarding
each candidate’s background, ability, and
experience is a weeding process the public
isn’t able to conduct in any meaningful
way. It is not perfect. In my observation,
the committee has passed over some very
qualified candidates. But, it is likely to
eliminate those who lack qualifications,
experience, and diligence, or whose biases or
temperament make the candidate unsuited
for the work. There is nothing similar in the
election process.
Carol Kapsner served as a justice of the North Dakota Supreme Court from her appointment in October 1998 to her retirement on
July 31, 2017. Prior to serving on the Supreme Court, she worked in private practice at the Bismarck law firm of Kapsner and Kapsner.
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THE GAVEL