Partisanship is crushing NC’s third branch. What can be done about the courts? | Opinion
Joe John became a politician when he won a seat in the state House in 2016, but after serving more than 25 years on the bench at the district, superior and appeals court levels, he describes himself as “an old judge.”
Now, he’s becoming increasingly worried and discouraged about what’s happening to North Carolina’s courts. Since Republicans won control of the General Assembly in 2010, John, a Wake County Democrat, has watched judicial elections become partisan, the public funding of them end and rising partisanship undermine the judiciary’s independence.
In February, John and two other Democratic House members who are former judges – Marcia Morey of Durham and Abe Jones of Wake – came out to essentially throw rocks at the rumbling tank of partisanship that is crushing North Carolina’s vital third branch of government.
They announced they were sponsoring House Bill 68., which calls for a return to nonpartisan judicial elections and the resumption of public funding that would spare judicial candidates from having to beg for money. The bill is unlikely to get a hearing or a vote..
In a heartfelt and – given the futility of his effort – poignant statement, John said in announcing the bill that he was speaking not as a Democrat, but as one who “is absolutely committed to truly fair and impartial courts in our state, and as one who is deeply troubled and distressed about the future of an independent judiciary in North Carolina.”
Democrats have protested the politicization of the courts since Republicans brought back partisan labels to previously nonpartisan judicial elections, making North Carolina the only state to do so. But those concerns have grown since the 2022 election shifted the balance of the state Supreme Court from a 4-3 Democratic majority to a 5-2 Republican one.
The newly configured court has agreed to requests by Republican legislative leaders that the Supreme Court rehear voting rights cases decided last year by the Democratic majority. Now the court appears likely to also reconsider a Supreme Court ruling in the Leandro case that would provide hundreds of millions of dollars in additional funding for schools.
Such rehearings are extremely rare and usually granted only when new circumstances in a case come to light. But the only change in these cases is the change in the political makeup of the court.
Republicans argue that payback is fair play since the Democratic-led court expedited the cases to make rulings before the November election changed the court’s balance. No doubt the Democratic justices did act with eyes on the election, but it’s the Republican changes in judicial elections that has given politics greater weight in court decisions. The ultimate cure would be to appoint judges through a nonpartisan process.
An overtly partisan state Supreme Court will have profound effects on North Carolina. Politics rather than the law may determine whether public schools are adequately funded. The court likely will rule on new state restrictions on abortions. It also may approve gerrymandered election districts that could lock in Republican control of the state legislature and push out three or more of the state’s Democratic U.S. House members.
Countering the politicization of the court is almost impossible. The state has no provision for the public to recall judges. Lawyers, who may have business before the courts, don’t want to antagonize judges. The Judicial Standards Commission, which oversees the Code of Judicial Conduct, is controlled by a Republican chief justice. The U.S. Supreme Court has decided that gerrymandering is an issue for state courts. Meanwhile, given the justices’ eight-year terms, voters can’t change the court’s majority until 2028.
Defenders of impartial courts have nothing left but their voice and they should use it.
This story was originally published March 5, 2023 at 5:30 AM with the headline "Partisanship is crushing NC’s third branch. What can be done about the courts? | Opinion."
