An involuntary recusal, in the teeth of a Justice’s own judgment that recusal is not necessary, is in effect a public declaration that the Justice has engaged in conduct prejudicial to the administration of justice. It is difficult to imagine a procedure better calculated to poison the deliberations of this body and its ability to fulfill its constitutionally assigned role in a professional and effective manner. — Attorneys representing legislative leaders in NAACP v. Moore

Attorneys representing top N.C. legislative leaders have presented a detailed argument to the state Supreme Court stating North Carolina’s highest court lacks the constitutional and statutory authority to forcibly remove sitting Supreme Court Justices.

“Canon 3 of North Carolina’s Code of Judicial Conduct — the only state law governing the recusal of the Members of this Court — expressly provides that the decision whether recusal is necessary or appropriate is up to the Justice himself/herself,” according to the brief submitted Thursday.

“A Justice’s individual determination whether to recuse is necessarily final, simply by virtue of this Court’s position at the top of North Carolina’s judicial system,” wrote Martin Warf. “That hardly makes the State an outlier; North Carolina’s approach is in accord with the practice of the federal judiciary, where the recusal determinations of the Justices of the U.S. Supreme Court are also individual, final, and nonreviewable. And it is also in accord with the approach adopted by nearly two-thirds of the States.”

“There is neither need nor authority for this Court to adopt new or additional procedures that would bring about the involuntary recusal of a Justice who has decided the issue of recusal for herself.”

Legislative attorneys explain that the N.C. Constitution empowers the General Assembly to remove justices through impeachment and allows the Judicial Branch to consider removal or suspension only through the Judicial Standards Commission.

“The General Assembly has thus enacted a precise, detailed statutory scheme for reviewing the decision of a Justice who declines to recuse in violation of the Code of Judicial Conduct: investigation by the JSC and a recommendation of discipline, followed by a decision by this Court after briefing and argument,” Warf wrote. “Because the General Assembly has crafted this detailed and complex statutory scheme, under basic principles of law this Court has no authority to supplement it by providing for review of recusal decisions of a Justice through some different process.”

The NAACP seeks to formally remove two GOP Supreme Court justices from a critical constitutional amendments case. Its attorneys presented a detailed argument to the Supreme Court on why the court as a whole should disqualify the two justices, an action never before taken in North Carolina, because of alleged conflicts of interest.

“The absence of a clear, transparent, and consistent process to govern recusal in the North Carolina Supreme Court undermines constitutional order. Litigants have a constitutional right to a fair tribunal, yet our highest appellate court currently has no system to ensure that right is guaranteed,” wrote NAACP attorneys.

The NAACP seeks to force Justice Phil Berger Jr. off this and other cases because his father leads one chamber of the General Assembly, and Justice Tamara Barringer because she previously served in the legislature.

In a paragraph dripping with irony, NAACP attorneys blame the increasing partisan nature and expense of judicial campaigns for the urgent need for the court to take the most partisan action in the history of the court. If the Supreme Court grants the NAACP’s wish, Democrat justices on the court would be allowed to forcibly remove the Republican justices while allowing liberal Democrat Anita Earls to remain in place. That would be despite Earls’ well-documented conflicts, including previously having been an attorney for the NAACP and helping the organization raise money after the amendments case already had produced a ruling in a lower court.

“The recent legislature-initiated changes politicizing judicial elections alongside the surge in the amount of money pouring into North Carolina’s judicial races has increased the possibilities for conflicts of interest and potential questions of bias — as well as increasing the danger of erosion of public confidence in the independence of the judiciary,” the NAACP brief argues. “These changes, independently and in concert with the necessity for clarity and protections of due process, augur in favor of the adoption of rules setting a clear procedure for judicial recusal.”

When it comes to forced removal of Supreme Court justices, the NAACP also takes an extreme stance that “the justice whose bias is at issue in the matter should not participate in the process.” That means under the NAACP argument, despite being duly elected by the citizens of North Carolina, Berger and Barringer would not only be removed from the amendments case itself. They also would be barred from participating in the involuntary recusal motion. Clearly this would disenfranchise the rights vested in the justices through their election. It also would disenfranchise the millions of voters who supported them.

Attorneys for the legislative leaders argue that allowing forced recusals would be a devastating act. It would be detrimental to the court itself.

“The number of recusal motions would thus itself be likely to skyrocket, leading to a vicious cycle of increasingly baseless accusations of bias and increasingly acrimonious forced recusals. As Justice Scalia noted in the context of the U.S. Supreme Court, ‘[w]hile the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this Court cannot.’”

The legislators’ attorneys follow this section with an important footnote:

“Notably, because of these policy reasons, Defendants have thus far refrained from such efforts in this case, and have not to this point moved for the involuntary recusal of Justice Anita Earls. In addition to having been the lead attorney who represented the plaintiffs in the Covington v. North Carolina litigation that is at the root of this case, … according to her biography on this Court’s website, Justice Earls is affiliated with an actual litigant in this case: she is a current member of the National Association for the Advancement of Colored People and the 2011 recipient of the NAACP’s Civil Rights Champion Award. This affiliation certainly raises an appearance of bias far more serious than the speculative arguments for recusal of Justices Barringer and Berger.”