Democratic Gov. Roy Cooper in Chapel Hill, N.C., on Nov. 2, 2016.
by Rebecca Pilar Buckwalter Poza , Daily KOS
North Carolina Republicans have been fighting for gerrymandered districts and suppressive voting laws for years. They’ve won too many victories. But they’ve also faced major defeats, principally in court. As Republicans await adjudication of a new round of critical cases—some dealing with their outrageous power-stripping moves against Gov. Roy Cooper (D)—they’ve changed their focus from laws to judges.
After voters elected Cooper in November 2016, the Republican North Carolina General Assembly quickly passed laws that drastically limited the powers of the executive branch. The outgoing Republican governor signed the bills, which have been challenged in court, along with other laws passed since then.
As the courts have protected voting rights and required the legislature to fix unfair gerrymanders, legislators have lashed out at judges and passed bills giving them more control over courts.
Taking on the judiciary isn’t a new strategy for the GOP, but they’re escalating their efforts.
The most drastic attack on North Carolina’s courts were two proposed state constitutional amendments. One would have essentially put the legislature in charge of choosing judges. Legislators called their plan a “merit selection” system, but unlike most such systems, North Carolina’s merit selection commission would not be charged with narrowing down the candidates and selecting a few to send to the governor, as they are in most merit selection systems. This commission would merely be responsible for deciding if candidates are qualified. Legislators would choose three names from the long list of qualified candidates, and the governor would pick one person from the legislature’s short list.
The other amendment would have shortened judges’ terms to just two years—the shortest in the nation. U.S. Rep. Lewis said: “Some would argue that we do have some activist judges, and the thought would be if you’re going to act like a legislator, perhaps you should run like one.” Other recent changes have already introduced more partisanship and money into judicial elections. In 2013, the legislature repealed the state’s renowned public financing program for judicial candidates, leaving would-be judges to raise contributions from wealthy campaign donors. North Carolina recently became the first state in nearly a century to switch from nonpartisan to partisan judicial races.
Republicans’ sallies against individual judges are also getting bolder (and more appalling).
The state Board of Elections and Ethics Enforcement recently received a complaint alleging that the legislators followed through on their threat of “profound consequences” for at least one of the judges. Judge L. Todd Burke, like many other African-American judges in Superior Court, would find himself in a district with another incumbent judge under the most recent versions of a judicial redistricting proposal. The complaint notes that his new district would have substantially fewer black voters.
One reason for Republicans’ hyper aggression: The next set of cases could determine whether their efforts to transfer power from the executive to the legislature will succeed—and set precedent that bars future power grabs.
Gov. Cooper challenged a law requiring Senate confirmation of his cabinet appointments under the state constitution. The governor argued that the legislature could only require “advice and consent” for constitutional officers, not cabinet secretaries.
Three Superior Court judges put the confirmation hearings on hold, and the leaders of the North Carolina General Assembly responded with an alarming statement that was essentially a frontal assault on the independence of the court: “Their decision to legislate from the bench will have profound consequences, and they should immediately reconvene their panel and reverse their order.” The leaders tried to defy the order and continue with the hearings. The judges defended their order to halt the confirmations, though they lifted their order and sided with the legislature on confirmations, though not other issues.
As Billy Corriher, senior research at the Institute for Southern Studies, notes, the North Carolina GOP is merely echoing the kinds of attacks Attorney Jeff Sessions and President Trump have made on the judiciary. There’s a parallel, too, in the efforts of Republicans in other states.
The Pennsylvania Supreme Court is currently facing a real threat of impeachment for striking down a redistricting map. Legislators in states like Florida and Kansas have also introduced bills to give themselves more control over choosing judges or change their merit selection systems to make them more like the North Carolina proposal. A constitutional amendment up for a vote in Arkansas would transfer some judicial rule-making authority to the legislature, and this would allow the legislature to overturn a 2013 state supreme court decision to strike down a tort reform law.
The attack on judicial independence is taking place at every level. The independence of our courts and the integrity of our judges is on the ballot this year.