Four bills threaten judicial independence in NC

Published 9:30 pm Wednesday, March 15, 2017

By Sen. Dan Blue
and Rep. Darren Jackson

Judicial independence is a hallmark of American democracy. It is critical both to the decisions judges make every day and to our confidence in them. Some scholars call the independent judiciary the most widely admired and imitated feature of the U.S. Constitution.

Therefore, it is with great concern that Americans across the political spectrum have watched President Donald Trump attack federal judges, question their motives and seek to undermine the legitimacy of the courts. Less noticed is what is happening in North Carolina.

The General Assembly in which we serve is undertaking its own attack on judges and the judicial branch. Four proposed laws are making their way through the legislature; more could be on the way.

The first bill, HB 100, makes every judicial election in the state partisan. Only the most fervent of party insiders think this is a good idea. The most likely avenue for candidates to seek the office of judge will be to go through political party primaries — contests dominated by those on the far left or right. Does this sound like a process that will produce the best judges? HB 100 passed the House and Senate with nearly every Republican voting for it. If Gov. Cooper vetoes the bill, Republicans will override the veto.

• The second bill, HB 240, takes away the governor’s authority to fill District Court vacancies. N.C. governors have had this authority since the creation of the court 50 years ago. The appointments would last only until the next election. It has been a process that quickly fills vacant judgeships that are critical in District Court which is extremely busy handling the people’s business of family matters, criminal trials and other cases.

Power has shifted back and forth between the parties over the years; both sides agreed this was a good practice — until now. Now legislators want the power to appoint. Vacancies will sit longer while legislators debate and work through the committee process. The process becomes more complicated when the legislature is not in session and has to reconvene to fill a vacany. The administration of justice will suffer.

The third bill, HB 241, removes the governor’s power to appoint special Superior Court judges. These non-elected statewide judges handle special matters in business court or travel around the state to hear cases where local judges have conflicts of interest. Currently, the governor appoints these judges and the legislature has the power to confirm or reject the appointments. It is a process that promotes compromise, balance and moderation. HB 241 cuts the governor out and leaves legislators as the sole decision-makers.

Finally is HB 239, which shrinks the N.C. Court of Appeals from 15 judges to 12. The Court of Appeals is the busiest appellate court in the state and one of the busiest in the country. These judges are writing an average of more than 100 opinions a year. That only tells part of the story, as it does not include cases where they sit on a three-judge panel hearing the case but are not writing the opinion, motion hearings and other court administrative responsibilities.

Why shrink the court? Bill sponsors point to a few incomplete statistics that suggest part of the court’s workload has decreased in recent years. The reality, though, is that no workload analysis has been done by the Administrative Office of the Courts or the Justice and Public Safety subcommittees of the legislature.

The Court of Appeals itself has not been consulted. Neither has Chief Justice Mark Martin’s Commission on the Administration of Law and Justice, a blue ribbon commission encompassing lawyers, judges, legislators, business leaders, court officials and members of the public. The N.C. Courts Commission has not been asked for its input, either. Not a single group or public official is publicly supporting HB 239 — except for Republican legislators, led by Sen. Berger and House Speaker Moore.

The legislature is shrinking the Court of Appeals by eliminating the next three vacant positions — positions that Gov. Cooper would fill. The governor’s appointments would only serve until the next election, when voters would elect someone to a full term, but even such a short-lived appointment is offensive to Republican leaders.

Taken together, these bills are an assault on the independence of the judiciary. What is more, they are likely not the end of the fight. During the House debate on the Court of Appeals bill, bill sponsors made it clear they intend to shift cases to the Supreme Court. They may want to create a justification for “court-packing” — adding justices to the Supreme Court who will be more compliant to Republicans’ agenda. The Supreme Court has shown a willingness to strike down unconstitutional acts by the legislature. That willingness is not acceptable to those in power.

We have three branches of government for a reason. Two of those branches, the executive and legislative, are naturally embroiled in the world of politics. Our judicial branch is supposed to be independent. That independence is being threatened, not just by presidential tweets, but by real changes in the law pushed through by Republican legislative supermajorities. House and Senate Democrats will continue to fight these changes, but we only have so many votes. People need to wake up to what is going on and let Republican lawmakers know that it is unacceptable.

Dan Blue is the Senate Democratic leader and Darren Jackson is House Democratic leader.