Justice Paul Newby hit the road with his son well before sunrise, leaving his home in Raleigh for a 7:30 a.m. breakfast in Charlotte one day earlier this month.
The man who wants to replace him on the N.C. Supreme Court, appellate Judge Sam Jimmy Ervin IV, spent the afternoon in Newbys hometown of Jamestown in Guilford County at the building and real estate industries annual Pigs, Poultry & Politics shindig before heading back to Raleigh for the state NAACP dinner.
Both men have to spend a lot of time driving these days because, as candidates for judicial office, its hard to get anyone to pay attention. A large number of voters skip the judges section of the ballot each year.
Going anywhere people allow me to go, Ervin said of his campaign strategy. Obviously, its a big state.
I call it retail politics, Newby said, shaking hands with people, asking them to consider your record. The big challenge is people dont even know were elected.
But the Republican and Democratic parties are paying attention. Although judicial elections are officially nonpartisan, there are strong partisan stakes in this race. In the balance is the current 4-3 split on the state Supreme Court that currently tips conservative. Newby is a registered Republican and Ervin a Democrat.
While the court, by definition, decides the most contentious and far-reaching legal questions of the day, the overshadowing controversy headed its way will be the legislative and congressional redistricting that has given state Republicans a great deal of control.
Thats why outside interests have started raising money for their candidate in this case, Newby to bolster the limited funds candidates can raise. Both candidates received $240,100 in public financing; Newby raised about $94,000 from individuals and Ervin about $85,000, in the first half of this year.
The N.C. Judicial Coalition, a super PAC, was formed earlier this year by prominent conservatives in the state to help Newby, has spent more than $700,000 on TV advertising, according to WCNC-TV, the Observers news partner. In its ad, a banjo-picking man sings about Newby Theres a judge they call Paul Newby; hes got criminals on the run as a police officer with bloodhounds chase apparent criminals.
The super PAC, officially known as an independent expenditure committee, is mostly composed of Republican heavy hitters. Private school entrepreneur Bob Luddy is the committees chairman. Tom Fetzer, former chairman of the state Republican Party, and I. Beverly Lake, a former chief justice of the state Supreme Court, serve on its board of directors.
Similar unlimited fundraising by a political action committee took place in 2006, with trial lawyer money, to influence the Supreme Court election. But unlike then, independent-expenditure committees now known as super PACs can expressly advocate for specific candidates.
Civitas Action, a nonprofit advocacy group, earlier this year bought $72,000 worth of radio ads for Newby, using money from a nonprofit organization in Washington, D.C., called Judicial Crisis Network. Other outside groups are expected to get involved. There is talk that Democrats plan to raise money through a nonprofit entity created in June, Support N.C., but it has not reported any financial transactions yet. Their respective political parties have embraced Newby and Ervin in campaign events across the state.
Newby and Ervin didnt sound too far apart on judicial philosophy at a public forum sponsored by the Federalist Society in Raleigh last month, except on the issue of outside financing. Ervin said the state has been going in the other direction, toward campaign finance reform, for several years following record-setting million-dollar expenditures by Supreme Court candidates in 2000.
I raise the question as to what impact such expenditures have on the public perception of the impartiality of the judiciary, and whether the increased politicization of these races runs a risk that the citizens will lose confidence in the fairness and impartiality of the decisions that are made by the courts, Ervin said. I think the public has to decide, is this the way that we want judicial elections to be conducted?
Newby aligns with the view that political contributions amount to protected free speech.
That is one of the most sacred rights that we have as citizens, Newby said. When we see that limited its always ended up in a bad way.
Now I dont know anything about these PACs, other than what I read in the paper, he said. Im hoping that whoever they may be (they) will simply help folks know who we are because this is a race about qualifications.
Whats in a name?
A poll earlier this month showed Ervin leading by 31 percent to 23 percent. It also showed that 46 percent of those polled hadnt decided which candidate they would vote for. Newbys fear is that the Ervin name will trump his incumbency advantage.
Ervin comes from a lineage of North Carolina judges. He is the grandson of the late U.S. Senate Watergate Committee Chairman Sam Ervin. His father was a federal judge. He currently serves on the state Court of Appeals.
Newby who points out his own name carries a negative connotation, being a synonym for beginner worries the name game works against him.
Are people going to vote on name recognition or are they going to vote on qualifications? Newby asked.
The men share a few similarities besides their love for the law. They were born six months apart Newby is 57 and Ervin 56 and both are native North Carolinians.
Newby was born in Asheboro and raised in Jamestown, his mother a teacher and his father a linotype operator. He remains an Eagle Scout, which is where he recalls getting excited about the Constitution and the Bill of Rights as a boy.
He still loves to talk about those fundamental underpinnings of the American democracy. At one campaign event, he told a story about North Carolinas role in ensuring the Bill of Rights was in place before it would ratify the Constitution.
His enthusiasm for the founding documents and for what he sees as governments limited role in protecting American freedoms has shaped his lifelong political and religious beliefs. He is an elder and Sunday school teacher in Christ Baptist Church in Raleigh. In public appearances over the years he has been aligned with leaders of the states Christian conservatives, opponents of same-sex marriage and has attended tea party events.
But Newby stresses he believes judges should be fair and impartial, and he points as proof to the endorsements he has received from four former state Supreme Court chief justices, including two Democrats: Burley Mitchell and Jim Exum. Several other Supreme Court and appeals court judges, Republican and Democrat, have endorsed him.
I think that undercuts any argument that somehow there is some partisanship, Newby said. Look at my cases the last eight years. I would agree judicial philosophy is important. Mine is that I will simply apply the law, fairly and impartially, in every case, but I will not intrude into the roles of the other branches of government.
Called to the law
Ervin was born and raised in Morganton and still lives there, where he takes his judicial skills to the soccer field, officiating school matches. He belongs to the First Presbyterian Church of Morganton, where he was a deacon.
He attended public schools in this state until law school at Harvard, but he says becoming a lawyer wasnt a given, despite his familys tradition. He says his father encouraged him to choose his own path.
I thought about other academic kinds of things, but I ultimately concluded I felt like I had a calling to the law, if you want to call it that, Ervin said. But that was not a foregone conclusion.
Ervin also spent many years in private practice. He eventually was appointed to the state Utilities Commission, where he says hearing procedure was good preparation for becoming a judge.
He, too, has picked up endorsements from influential groups, including the N.C. Association of Educators, the N.C. Troopers Association, the N.C. Sierra Club, and the N.C. Advocates for Justice, a predominantly trial lawyers group.
He frequently stresses his belief that someone sitting on the bench should not have a political or ideological agenda, and he thinks hes been successful at that.
Admittedly nobody is the best judge of the quality of their own work, he said.
But I think Ive got a reputation for not having a persistent pattern of ruling for or against any particular type of party. Ive made virtually everybody mad at some point or another in the course of my career. I expect to continue to do that regardless of whether I stay on the Court of Appeals or go to the Supreme Court.
Thats the proper role of judges. Youre supposed to be impartial. Youre not supposed to perpetuate any sort of political agenda, and I think my record reflects that.