The following editorial appeared in the December 2012 print edition of Carolina Journal:
Democrats and liberals in North Carolina have suffered some major setbacks over the past two election cycles, losing control of the General Assembly in 2010 and the Executive Mansion in November. And they’ve shown few signs of accepting defeat with dignity. Consider the lawsuit filed by the state chapter of the NAACP and other liberal groups trying to force Supreme Court Justice Paul Newby to recuse himself from a likely challenge to the redistricting plan enacted last year by the legislature.
The plaintiffs — including the left-wing Democracy NC and the ostensibly nonpartisan League of Women Voters — argue that deep-pocketed political donors who supported the re-election of Newby have hijacked the state’s judiciary. That’s nonsense, unless you’re shallow enough to believe that every politician mindlessly parrots marching orders from his supporters.
If the plaintiffs prevail, they would enhance the role of money in judicial races, though not in the way their lawsuit imagines. The lawsuit would allow ideologically motivated donors to remove judges they oppose from ruling on high-profile cases. Perversely, the plaintiffs would enable wealthy interests to “buy” the judiciary — which is the opposite of the liberal activists’ stated goal.
North Carolina’s judicial elections are nonpartisan by definition, though candidates make their ideological preferences known. In November, Newby, a conservative and registered Republican, defeated liberal state Appeals Court Judge Jimmy Ervin by a 52-48 margin. The lawsuit suggests that Newby would not have won without roughly $2 million in spending by the N.C. Judicial Coalition, an independent group led by former state GOP Chairman Tom Fetzer and underwritten largely by Republican donors. The plaintiffs’ motion states that polls in June and August showed Ervin leading Newby — though at the time 70 percent and 67 percent of voters, respectively, were undecided in the contest.
It’s just as plausible that Ervin led early in the campaign because voters linked him to his legendary grandfather, the late U.S. Sen. Sam Ervin. Once voters learned that Jimmy Ervin was not “Senator Sam,” they may have given Newby a look. Or perhaps once they learned that Newby had served on the Supreme Court for eight years and was backed by conservatives, right-leaning voters warmed to the incumbent.
Eddie Speas, an attorney for the plaintiffs, concedes there’s no precedent allowing the other justices to vote Newby off the case, nor any rules stating when a justice should decide to recuse himself.
But consider what would happen if the plaintiffs prevailed. Ideological activists could force any judge they oppose to remove himself from contentious cases — simply by setting up an independent expenditure group and donating to that judge’s campaign. Liberals could silence conservative judges, and conservatives could do the same to liberal jurists.
There are plenty of things wrong with the way North Carolinians choose judges — making the races nonpartisan tops the list. Letting individuals use their own money to support the candidates they prefer, however, is not a flaw of our political system. It’s a strength.