By Elizabeth Cook
ecook@salisburypost.com
Paul Newby portrays himself as a nobody from Jamestown battling one of the most legendary names in North Carolina politics – Sam Ervin IV, grandson of famed Watergate committee chairman Sen. Sam Ervin Jr.
But this year Newby’s bid for re-election to the N.C. Supreme Court has attracted the support of a super PAC and the attention of the New York Times. And both candidates are the subject of political TV ads that are unprecedented in state history.
The one touting Newby has a “Dukes of Hazzard” flavor, with a banjo-strumming singer extolling the candidate as a tough-on-crime judge.
Ervin’s ad takes a more solemn approach, with a narrator saying, “The North Carolina Supreme Court should not be for sale.”
This is high drama for a nonpartisan judicial election, but supporters on both sides would say that’s because the stakes are high.
Political considerations shroud the Supreme Court, where four of the seven justices are Republican by voter registration. Newby, a former assistant U.S. attorney, is Republican, while Ervin, now on the N.C. Court of Appeals, is a Democrat. An Ervin victory would tip the balance to Democrats before justices are expected to consider redistricting litigation that challenges new maps for congressional and General Assembly districts.
Pundits have dubbed this the second-most watched race in the state, after the presidential contest.
Veteran GOP consultant Carter Wrenn summed it up on his political blog, Talking about Politics, a few months ago: “So if Newby wins, Republicans in the House and the Senate keep their districts and, the way they see it, control of the legislature for the next decade. The Democrats have figured out the same thing in reverse – Ervin winning and throwing out those Republican districts may be their last hope of winning the State House or Senate for years.”
Fluke win
To hear Newby tell it, his election to the court in the first place was a fluke. The son of a printer and a teacher, he grew up in Jamestown. After graduating from Duke University and the University of North Carolina School of Law, he began practicing law in Asheville with Van Winkle, Buck, Wall, Starnes and Davis. He spent some time working for David Murdock as general counsel of Cannon Mills Realty and Development in Kannapolis before his appointment as an assistant U.S. attorney in Raleigh.
When Justice Bob Orr retired in August 2004, Newby was one of eight candidates who filed for Orr’s place on the Supreme Court. At that point, the election was winner-take-all, Newby says, and many people were surprised when the seat went to this relative unknown named Newby.
The legislature soon scrapped the winner-take-all model.
“I jokingly say, although it’s probably not a joke, that the instant runoff was the anti-Paul Newby Act,” he says.
He never took re-election to the court for granted, but he was surprised when Ervin filed to run against him. Though Newby says his own resume shows greater depth of experience, he believes his opponent has an advantage. Many voters skip judicial races on the ballot because they don’t know the candidates. Of those who do vote in the races, Newby says, half “play the name game,” and he can’t win that.
“The Newbys have been in North Carolina since 1700; we just never did anything,” he says.
“And ‘Scooby-dooby, vote for Newby’ only gets so many votes.”
Newby has not toiled in obscurity, however – at least not lately. A June 5 editorial in The New York Times headlined “North Carolina, Meet Citizens United” painted the Newby-Ervin race as a battle for control of the court. And it cast Newby as a far-right ideologue backed by wealthy conservative Republicans who have created a super PAC to promote his candidacy and their agenda – the N.C. Judicial Coalition.
That’s just wrong, says Newby. The N.C. Judicial Coalition counts among its key players former Chief Justice Burley Mitchell, a Democrat. And Newby says he has support from other Democrats as well.
But the coalition has agreed to spend more than $355,000 for commercials in Piedmont TV markets, including the ad featuring the banjo player. The Republican Party has in recent weeks touted Newby and other Republican judicial candidates in direct-mail pieces, and conservative-leaning Civitas Action has produced pro-Newby radio ads.
Ad spending grows
To date, according to the Associated Press, contracts with TV stations show Newby’s campaign has agreed to pay more than $133,000 for its own TV commercials, while Ervin’s campaign is paying more than $176,000.
Newby objects most to the Times’ characterization of him as a candidate of the far-right and insists that he is not agenda-driven. The Times said Newby wrote a decision that was favorable to predatory lending; Newby says the case was really about personal jurisdiction, and the court’s decision was in line with courts in several other states.
Newby also wrote a decision that said a Durham court did not have jurisdiction to allow a woman to adopt the child born to her same-sex partner. The case involved former state Sen. Julia Boseman and her partner, Melissa Jarrell, who split up after five years together and got embroiled in a custody dispute. State law requires a person to be married to do a second-parent adoption, and the couple could not be legally married in North Carolina. The Durham court may have been willing to overlook that, Newby says, but the state Supreme Court was not.
“That’s what the law says,” Newby says. “If you don’t like it, go to the legislature and get it changed.”
Newby says it was a 5-to-2 decision, with justices of both parties and both genders on the same side.
“These are not Paul Newby opinions. These are opinions of the court,” Newby says.
“How dare you try to say this is some narrow-minded rightwing whatever when in fact the majority of our court ruled in this manner? Where are the defenders of judicial independence when a judge has simply followed the law?”
Often lost in discussion of the controversial ruling is the fact the court allowed the women to continue sharing joint custody of the child – a decision some have called Solomon-like.
But there’s no Solomon-like parsing of election law when it comes to the ability of well-financed groups to influence elections. Newby says that’s just free speech in action.
“I like people being able to go into the public square and speak their minds,” he says. “I also believe that if all the entities have free access to the public square, then ultimately truth and the right outcome prevail.”
That may mean that people with money are able to speak louder and more frequently than others, he says, but he doesn’t know how to overcome that.
“You know, it’s kind of the nature of things.”
The Associated Press contributed to this story