RALEIGH — To many, the race is below the radar, taking a back seat to the presidential and gubernatorial contests in North Carolina. But some say the battle for a state Supreme Court justice seat could be the most important race to be decided by the state’s voters this year.
The reason? The outcome of this race will decide whether the partisan balance will shift toward the Democrats or remain with the Republicans on the officially nonpartisan Supreme Court.
Among other issues, the court will decide whether the legislative and congressional maps set last year by the Republican-led General Assembly are constitutional. If the justices say no, it may take a year or more to draw new maps and complete all the legal challenges to them. The justices may wind up drawing the final maps before the 2014 election, and whether the majority is Democratic or Republican could have a significant effect on the partisan makeup of the General Assembly and the state’s congressional delegation.
The race pits incumbent Republican Justice Paul Newby of Raleigh against Democratic Court of Appeals Judge Sam J. “Jimmy” Ervin IV of Morganton.
“I believe in judicial self-restraint,” Newby said of his judicial philosophy. “I believe in separation of powers. It is the legislative branch that makes the laws. The judicial branch fairly and impartially applies the laws as intended.”
Ervin declined an opportunity to talk to Carolina Journal about his campaign for a seat on the state’s highest court. On his campaign Web page, Ervin addresses his philosophy: “The law is the glue that holds society together. As a member of the Court of Appeals, I have applied it dispassionately, fairly, and conscientiously. I will do the same on the Supreme Court.”
During a Sept. 26 candidate forum in Raleigh sponsored by The Federalist Society, Ervin said it shouldn’t matter what a justice’s basic political ideology might be.
“Your job is to determine … whether a legal error was committed by the trial judge,” Ervin said. “Your job is to take the facts, examine them in light of legal precedents that you are enforcing in that particular case and determine what the outcome called for by the law is.”
Ervin said he feels that opinions should be written in a way that the losing parties in the case understand why they lost.
Newby emphasized his bipartisan support, saying that former jurists who have examined cases in which he has authored opinions “believe I am fair, impartial and simply follow the law,” adding, “I think it’s important that opinions be clear and concise.”
Both Newby and Ervin said that they felt it inappropriate to comment on issues that they could potentially face before the state’s highest court. And both said that they hold judicial precedent in high regard. “People need to be able to know what the law is so they can plan their own lives,” Ervin said.
During the forum, Newby would refer to his opponent by his common nickname, “Jimmy” Ervin, while Ervin referred to himself as Sam Ervin IV, the namesake of his grandfather, U.S. Sen. Sam J. Ervin, Jr.
Both candidates are participating in the state’s N.C. Public Campaign Fund for appellate judges, which is paid for by income tax check-offs and fees assessed to lawyers. And both had more than $300,000 in cash on hand at the end of the second-quarter campaign finance filing period with the State Board of Elections.
But that’s not all that will be spent on the Supreme Court justice race.
Tom Fetzer, a former state GOP chairman and former Raleigh mayor, said that he has formed an independent expenditure campaign finance group along with two former Supreme Court chief justices, Burley Mitchell and I. Beverly Lake Jr., designed to assist in the re-election of Newby. It is called the North Carolina Judicial Coalition.
Fetzer said he expects some sort of independent expenditure committee to form to assist Ervin also.
This isn’t the first time that a committee independent of any candidate’s campaign committee has chipped in with money for appellate court cases. In 2006, a group called FairJudges.net — funded primarily by trial lawyers, the Democratic Party, and unions — paid for ads that characterized their preferred judicial candidates in a favorable light.
Newby brought up the 2006 spending when the subject of super-PACs came up during The Federalist Society’s forum. “I’m certainly a proponent of free speech,” Newby said.
Ervin said that such spending on judicial elections runs the risk of citizens losing confidence in the nonpartisan election process.
Lake said that he had worked with Newby when Newby first joined the court.
“I’ve seen his work and his ability up close,” Lake said. He said he thinks Newby’s time and experience on the Supreme Court give him the edge in this campaign.
“I think Judge Ervin ought to stay on the Court of Appeals a little while longer and get some more experience,” Lake said. Ervin was elected to the Court of Appeals in 2008.
Newby said the law needs to be consistent and predictable, so that an attorney can predict with some degree of confidence how a court will rule.
“Businesses have got to be assured that courts will properly respect property rights and enforce contracts as the parties intended,” Newby said.
Newby said he didn’t have one particular justice that he would model himself after, although he did mention one former United States chief justice that he held in high regard.
“Chief Justice [William] Rehnquist was someone I admired greatly,” Newby said. Newby said he liked Rehnquist’s penchant for respecting separation of powers and practicing judicial self-restraint.
He also mentioned two Eastern District federal judges that he held in high regard — Judge Franklin Dupree Jr., appointed by President Nixon, and Judge Earl Britt, appointed by President Carter.
Newby said his experience on the job is the top issue in the 2012 campaign.
“I’ve got eight years of experience,” Newby said. “I think it is folks wanting the law to be consistently and predictably applied. That’s me.”
Newby, an Asheboro native, was raised in Jamestown. He received his undergraduate degree in public policy at Duke University and his law degree at UNC Chapel Hill. He has practiced law in Asheville and was vice president and general counsel at Cannon Mills Realty and Development Corp. in Kannapolis. He was an assistant U.S. attorney in Raleigh for 19 years. He is an adjunct professor at the Campbell University School of Law.
Ervin was born and raised in Morganton. He received his undergraduate degree from Davidson College and his law degree from Harvard School of Law. He practiced law in Morganton from 1981 to 1999, when Gov. Jim Hunt appointed him to the N.C. Utilities Commission, where he served until winning election to the Court of Appeals.
Barry Smith is an associate editor of Carolina Journal.