Former judge thinks judicial reform could lead to Supreme Court stacking
Published January 19, 2018
by Melissa Boughton, NC Policy Watch, January 18, 2018.
Nothing is off the table when it comes to Republican judicial reform, and a former Wake County judge thinks court packing may still be an option.
Donald Stephens has been using his newfound retirement to speak out against changes to the judiciary that could result in less independence for the coequal branch of government.
He penned an email this week predicting what might happen with judicial reform — namely, that lawmakers will continue with plans for judicial redistricting and “merit” selection and that, if the latter is approved by voters, they will add two seats to the state Supreme Court and tip the scales back to a GOP majority, helping, in theory, with future litigation over the constitutionality of their laws.
“This is the obvious strategy for an otherwise unexplained obsession for ‘merit selection’ judicial reform,” Stephens wrote. “A pure and simple power grab to exercise complete control over two branches of government.”
Since legislative leaders have not publicly revealed their preferred plans for the judiciary, and have yet to speak of any substantive details in possible plans, speculation has run rampant over the past couple months.
The state House and Senate have been reviewing major judicial reform proposalssince the end of last year’s regular session, when Rep. Justin Burr (R-Stanly, Montgomery) surprised everyone with his very own redrawn judicial maps.
After a legislative “long session” in which lawmakers tackled other issues, approved a state budget and adjourned more or less on time, Burr decided a focus should shift to judicial redistricting right away. His plan was met with skepticism and criticism by Democratic lawmakers and the public alike, and it was ultimately shelved for a brief time.
House lawmakers, however, met in September to review Burr’s proposed maps and passed them in October. The Senate began reviewing the maps and all other forms of judicial reform in November.
A joint House and Senate committee was appointed earlier this month to study Burr’s plan and a Senate plan for “merit selection.” The group is scheduled to meet for the second time tomorrow at 10 a.m. An agenda for the meeting has not yet been made public.
At the last meeting, lawmakers discussed judicial redistricting and a proposed judicial selection plan dubbed “the purple plan.” It would serve as a way to select trial court judges, but Sen. Paul Newton (R-Cabarrus) said a lot of the details of the plan had yet to be worked out.
Stephens predicted that lawmakers will abandon the plan to select trial court judges and instead choose to redistrict them and continue to elect them via partisan elections.
“However they will continue to push strongly for their fundamental goal to pass a Constitutional Amendment to go on the ballot in the May primary to change the way in which appellate judges are selected in the future,” he wrote. “Their ‘purple’ plan, as recently discussed in the joint Senate/House Committee on Judicial Reform, would allow the legislature to submit three names to the Governor for appointment, all of whom could be Republicans, to fill an appellate judicial vacancy.”
If the voters approve it, Stephens said lawmakers can and will increase the size of the state Supreme Court from seven members to nine.
“With that accomplished, they will fill those two new Supreme Court seats with Republicans and regain the majority control of the North Carolina Supreme Court,” Stephens wrote. “That GOP dominated court would then determine the constitutionality of the future 2020 legislative redistricting laws drawn by the legislature … just like in the past.”
None of the co-chairs of the joint committee responded to an email seeking comment about Stephens’ hypothesis — Burr and Rep. David Lewis (R-Harnett) and Senators Bill Rabon (R-Bladen), Dan Bishop (R-Mecklenburg) and Warren Daniel (R-Burke). Legislative leaders Senate President Pro Tem Phil Berger and House Speaker Tim Moore also did not respond to a request for comment.
Court packing first came up after the 2016 election of Justice Mike Morgan, which tipped the court to a 4-3 Democratic majority. It was a rumored plan thought to have been nixed after public scrutiny.
GOP lawmakers at the time however continued to make changes to the judiciary, including a measure that reduced the membership of the Court of Appeals from 15 judges to 12 and transferred some of its work to the state Supreme Court.
Rep. Sarah Stevens (R-Surry, Wilkes) alluded at the time to a bigger plan to expand the state’s highest court.
“The Supreme Court doesn’t have enough work to do, so by cutting back on some of the Court of Appeals work, we’re going to continue to send more cases directly to the Supreme Court,” Stevens said last year. “You may see us back here adding more to the Supreme Court load next year or the year after for that very reason. We are trying to equalize the loads between the two.”
Her timeline fits former Judge Stephens’ theory of what is to come.
Rep. Marcia Morey (D-Durham), a former chief district court judge, has been keeping close track of legislative changes and proposals to the judiciary and said that Stephens’ email has merit.
“I think Judge Stephens’ analysis hits the bullseye,” she said. “This dual track of Republican House and Senate proposals neatly fit together in the partisan scheme to stack Republicans on all levels of the bench — redraw districts for trial courts and get legislative appointments for the Court of Appeals and the Supreme Court. Obviously the most important prize is the Supreme Court.”
She added that she believes at the first opportunity, GOP lawmakers will try to add two justices if they have appointment power.
“A constitutional ‘merit’ selection (guise for legislative appointment) for only appellate judges would have a better chance with voters than taking away the right to vote for all judges,” she said.
Democracy North Carolina hopes that’s not the case. The voting rights organization has also been closely tracking legislation attacking the courts and organizing events for the public to speak out against such measures.
Executive Director Tomas Lopez said Stephens’ thoughts “come from a concrete place: this legislature’s track record of pushing laws to entrench its power.” He cited a federal court order from last week striking down unconstitutional partisan gerrymandering as an example and said judicial reform plans are similarly troubling.
“Thousands of North Carolinians are telling their representatives to back off of their plans for our courts, the legal community is saying the same thing, and now members of the majority caucus are, too,” said Lopez. “As GOP Rep. John Blust put it, ‘the public will not accept this.’”
