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Excerpt from Oral History Interview with Henry Ell Frye, February 18 and 26, 1992. Interview C-0091. Southern Oral History Program Collection (#4007) See Entire Interview >>

Transition from the legislature to the judiciary

Frye discusses his appointment to the North Carolina Supreme Court. In particular, he focuses on how his years of service as a lawyer and state legislator helped prepare him for the job. At the same time, he discusses how he had to make the transition from being a partisan Democrat and advocate of certain causes towards the more objective stance of a judge.

Citing this Excerpt

Oral History Interview with Henry Ell Frye, February 18 and 26, 1992. Interview C-0091. Southern Oral History Program Collection (#4007) in the Southern Oral History Program Collection, Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill.

Full Text of the Excerpt

What were your greatest assets, at that time, that you thought you brought to the bench?
Well, I had been practicing law for over 20 years. In fact, for a longer period than that, but active practice for about 21 years. I had served in the legislature in the House for 12 years, the Senate for 2 years. I had served on almost every committee in the legislature, and I had been a prosecutor in the federal system, assistant prosecutor - actually Assistant U.S. Attorney - and so, I don't think there was any question at all about my qualifications for the court. So, and again, I don't recall any negative comments. I am sure there may have been some and I just didn't hear, obviously. [laughter] As I recall, there was something about the question of politics and of course, he was a Democrat and I was a Democrat. I had actually served as one of the co-chairs of his re-election campaign and of course that question, somebody raised that. I don't think that hurt. People don't usually appoint their enemies to positions. They appoint people that generally or even if they are not friends, at least they aren't on the opposite side of things. All in all I thought, well, of course you're not interested in what I thought. Generally I think most of the people who commented for publication were favorable in terms of the appointment.
Was it difficult for you to make the transition from advocate to a judge?
It was not a big problem. It was some difficulty. I had to sort of catch myself a few times to be sure I remembered that I was not an advocate now. I was the person who had to make a decision. But it was not a major problem. It was a major adjustment and along with that adjustment, of course, was the adjustment of not saying everything that I wanted to say publicly about things generally. So that when a public issue came up, for example, when I was in the legislature, I could give my opinion on it, say what I thought ought to be done and whether I thought what another person was doing was right and what I thought the General Assembly should do, what I thought the governor should do, or what I thought the members of a city council or mayor of a city should do. All of a sudden, I had to be very careful not to comment about things like that because they might eventually come before the court and that was an adjustment and a very significant one.
Often the role of the legislature is to create the law and the role of the judge is to interpret it, but in many cases, the judge's role is to fill in the gaps and create case law. In such cases, do you find yourself tending to be more of a strict constructionist because of your experience as a legislator?
Well, how do I answer that? If the question is one of what did the legislature intend, of course you have the easy cases where it is very clear. There are others where it is unclear and in North Carolina we don't have legislative history as such in terms of our opinions for the court. Obviously, some of the things I could remember when I was in the legislature, how I felt about things. But I also knew that what was placed in a bill did not always accurately reflect a combined, at least understood, will of all of the members who voted for it. In other words, some people would have one motive for voting for a bill and others would have another motive. So where the language is clear then you construe it right down the line and that's what I tried to do. Where it was unclear, then I tried to, and still do, try to look at what's the purpose of it and to the extent that is stated clearly in the legislation to try to follow it. Now there are a lot of things that will come up under a statute that were not anticipated in the sense of the legislature saying now this is what we want to happen in this type of situation. At that time you try to draw on your experiences and the purposes of the legislation and your leanings and that type of thing, I think, in interpreting it. I'm not a strict constructionist, I'm sure in the sense that the term is sometimes used to say, well, going back at the time this was enacted if it was 100 years ago, what did it mean at that time and without considering the impact today. So in that sense I guess I'm not a strict constructionist.