Court of Appeals Races: Calabria, Walker

I have had the opportunity to examine the two North Carolina Court of Appeals races.

I am going to vote to reelect the incumbent, Judge Ann Calabria, to the seat that she currently holds.

With respect to the "Elmore seat", the situation is a bit more complicated.  Elmore is a Republican, and has roots in Greensboro.  However, upon viewing the questionnaire he filed with the North Carolina Family Policy Council, some of his answers aroused concern.  But the one I wish to highlight is the response that reveals his approach to judicial interpretation.

The questionnaire asks which US Supreme Court justice best represents his judicial philosophy. Elmore's response?  Justice Anthony Kennedy!

That is a huge problem.  Kennedy's approach to jurisprudence and constitutional interpretation has been highly problematic.

I will be voting for Steven Walker for the seat that Elmore currently holds.  His model Supreme Court Justice is Antonin Scalia.

Those responses say it all.

In summary, my choices are Judge Ann Calabria and Steven Walker in the two respective Court of Appeals races.

Comments

[Roch101]

Doug Clark finds Walker to be the most ideological and least experienced of all the candidates for this seat:

http://www.news-record.com/blog/2010/04/27/entry/court_race_presents_striking_contrasts

[Joe Guarino]

Roch, I disagree with Doug's perspective on this race. I understand that some may like Elmore, and he is a hometown boy, and all that. But if he primarily identifies with Anthony Kennedy, then there is a fundamental problem with respect to his judicial philosophy. And my opinion is that judicial philosophy-- not "ideology"-- is the primary criterion upon which we should be assessing these candidates.

Walker is the best candidate from that perspective, hands down.

[Roch101]

Walker's lack of experience is not a matter of perspective, it is empirical.

[Joe Guarino]

It is; and one has to weigh the issue of quantity of experience against Elmore's errant approach to judicial interpretation. I think the latter consideration overrides the former.

[Doug Clark]

Joe,

Steven Walker didn't tell me he has philosophical differences with Rick Elmore, he said "ideological" differences.

Personally, I have a problem when judicial candidates purport to bring any kind of "ideology" to the bench. I prefer competence (tested by experience) and impartiality.

However, discussion of judicial races is much too rare in the media and on the blogosphere, so thanks for initiating this conversation.

[Joe Guarino]

Doug, I appreciate your interesting comments.

I think one needs to consider fully the significance of Judge Elmore's embrace of Anthony Kennedy's approach. Kennedy's jurisprudence has been somewhat of a mess. It has sometimes seemed like elevating one's policy preferences over the text and logic of the Constitution, and over any legitimate understanding of its original meaning. He has been all over the map, and has lacked a consistent judicial philosophy.

When Elmore selects Kennedy as his model Justice, that is of enormous significance. He knows exactly what Kennedy's jurisprudence is all about.

I don't think there is any basis for suggesting that Walker would not be impartial. He describes himself as a "strict constructionist", which would be roughly in the mode of Scalia, Thomas, Roberts and Alito.

There is no question that Elmore has more experience than Walker. But I question the value of that experience if Elmore's jurisprudence is going to be questionable.

[Doug Clark]

Maybe, but the North Carolina constitution has so many ambiguities that it could tie a strict constructionist in knots. What does it mean, for example, that higher education must be provided to the people of the state free of expense to the extent practicable? Besides, most cases really don't touch on constitutional issues but have to do with application of law. And many of the laws written by our legislature are as clear as mud. Often there are conflicting statutes. Interpretation is required.

One of the cases where Stevens faults Elmore is really interesting. I linked to it on my blog (In the matter of RLC), and it's a perfect example of ambiguity in the law. When it went to our Supreme Court, there was a majority opinion signed by three justices, a concurring opinion signed by two and a dissenting opinion signed by two. I would invite anyone to read them and try to determine the "philosophy" they reflect.

[Joe Guarino]

Doug, those are some great points. the only way I can respond is by suggesting that when there is constitutional or statutory language that seems unclear, it is best to have a systematic, consistent, rigorous way of interpreting the language.

It is interesting to me that Elmore received the endorsement of the Simkins PAC locally. What does this mean from the standpoint of his approach to criminal cases? Walker has an interesting statement on his website:

"Those who are constitutionally convicted of a crime should serve their sentence, not have their conviction overturned by a judge's extra-constitutional imagination."

He does not come out and say it directly, but is he concerned that Elmore is overturning too many criminal convictions on appeal? If so, that would explain the Simkins endorsement.

[Doug Clark]

I don't know anything about the Simkins PAC endorsement or what it means. You might think it would endorse one of the candidates supported by the Democratic Party, but then it endorsed Robert N. Hunter Jr. for COA in 2008, and he was considered a conservative.

Walker cited two cases to me where he faulted Elmore's decisions. Every case is available online, and Walker could use his website to link to every one where he thinks Elmore was using extraconstitutional imagination to set criminals loose. That would be helpful in that voters could read for themselves and decide whether Walker's characterization seems fair or not.

I have to say that Walker is a very smart guy, second in his law school class. Brady must really like him to keep him on as a clerk for five years, which is almost unheard of. And he does recognize that sometimes criminals don't get fair trials and should be granted a new trial or have charges dismissed. It's just that, in campaigning, some candidates don't want to address nuance. On the bench, however, judges have to look at shades of gray, not just black and white.

[Joe Guarino]

Doug, I guess I would have a hard time believing that the PAC is supporting Elmore because they believe he would be tough on crime.

I think clearly there are philosophical differences between the two men, and the voters will decide-- to the extent that they are paying attention. There are obviously areas in which judges are permitted to exercise discretion-- and "judgment"-- and I can only hope voters choose the right person who is best inclined to use this authority appropriately.

[Ken Hill]

When one considers experience, specified length of experience may not be all that significant. 20 years "experience" may mean 20 years of improvement at the job. But it could mean 1 weeks experience 1040 times.

[bubba]

"But it could mean 1 weeks experience 1040 times."

One week is all some people need to climb their own personal learning curve. This is particularly true of certain moderates and Dems/Lefties/"Progressives".

[jaycee]

"'Sperience? We don't need no 'sperience." --Husssein Obama, 2008

[Joe Guarino]

Ken, Bubba, Jaycee, the experience issue is difficult to navigate. Ordinarily, experience is very helpful. Of course, Walker has had the opportunity to serve under a high-level judge for years; and observe and participate in all that takes place. So he is not devoid of experience. He does not have private practice experience or experience in a lower-level judgeship. But those considerations are to weighed against Elmore's lack of a coherent judicial philosophy, and his endorsement by the Simkins PAC.

[Mark Hayes]

I am a law clerk with Steven. I am politically conservative like him (and Judge Elmore). Let me tell you though --

THERE IS NO WAY STEVEN IS QUALIFIED.

I know this job. This is his only experience -- being one of three research assistants in one of seven chambers. He lacks the basic competency to be a judge at this time. I like him, I really do. Maybe some day I'll vote for him for Congress -- but a vote for Steven for Court of Appeals Judge is a mistake so colossal that if he wins, we may well see our right to elect judges taken away.