The court can't seem to stay out of partisan politics
Published July 29, 2015
by Doug Clark, On the Record, Greensboro News-Record, July 29, 2015.
When a judge enters the courtroom, everyone is told to rise until her honor sits herself behind the bench. It’s a mandatory gesture of respect. The feeling, if it’s sincere at all, doesn’t last.
Outside the courtroom, Americans express considerable disdain for judges — especially when the judges issue disagreeable decisions.
“Liberal judicial activism,” Sen. Ted Cruz (R-Texas) said of the U.S. Supreme Court’s ruling in the same-sex marriage case. He was so vexed, he suggested a constitutional amendment to require periodic retention elections for justices.
Here in North Carolina, Senate leader Phil Berger (R-Rockingham) and others rail against “unelected” or “unaccountable” federal judges when rulings go against them.
We have “unelected” state judges, too, including administrative law judges, magistrates who now can decline to marry legally entitled couples and jurists whose initial route to the bench occurs by appointment of the governor.
The courts have been in the political cross hairs for a long time. The most famous assault was President Franklin Roosevelt’s court-packing scheme in 1937. Frustrated by the Supreme Court’s rejection of many New Deal programs as unconstitutional, Roosevelt hatched a plan to add as many as six justices who would be more inclined to see things his way. The Senate refused to go along with such a blatant manipulation.
Cruz’s idea isn’t likely to win support, either. The founders meant to create an “unaccountable” judiciary — one not subject to pressure from politicians or special interests.
It’s interesting, though, because North Carolina has just adopted a retention election process for our Supreme Court.
When his eight-year elected term comes up next year, Justice Bob Edmunds of Greensboro will not have an opponent. Instead, voters will choose whether to retain him for another eight years or remove him. If he is removed, the governor will appoint a replacement who would serve until 2018, at which time a regular election would be held with as many qualified candidates as want to run.
Democrats in the legislature voted against this change, smelling a political rat. Although our courts are nonpartisan, Edmunds is a registered Republican, and Republicans hold a 4-3 edge on the court. Republicans want to keep it, and this may help.
“In the 40-year history of retention referendums in Tennessee, only one justice has ever lost,” Vanderbilt law professor Brian Fitzpatrick wrote in The Tennessean last year. “The record nationwide is not much different: Judges almost always win these races with 70 percent to 80 percent of the vote.”
Despite that experience, I think retention elections are preferable to the open elections we have now — especially since our legislature eliminated public campaign financing for statewide judicial candidates. That opened the door to million-dollar campaigns funded by wealthy individuals and special-interest groups. Judicial candidates have to raise money from someone.
There’s still potential for that in retention campaigns. A justice can attract organized opposition if he issues rulings that are wildly unpopular — a good way to hold him accountable — or if he fails to please the special interests that recently have poured big money into North Carolina Supreme Court races.
Justices should not be accountable only to those willing to spend money to elect or retain them.
The public is distrustful of the courts, at least at the federal level. A new Rasmussen poll finds that only 36 percent of likely voters think the Supreme Court is doing a good or excellent job. Of course, Americans don’t give high marks to any branch of government. President Obama and Congress have dismal approval numbers, and so do Gov. Pat McCrory and the N.C. legislature.
Opinions about the courts often bounce around, depending on the latest big decision. There are also partisan differences.
The N.C. Supreme Court’s ruling in favor of school vouchers last week was decided on a 4-3 partisan basis — Republicans for, Democrats against.
Everyone should respect court rulings. But let’s be realistic. With initiatives of the Republican legislature challenged in court all the time, Edmunds’ retention election next year could divide Republicans and Democrats. Yet, even if Edmunds loses, McCrory could just appoint another Republican to fill his seat.
There’s another option. The state constitution says our Supreme Court can have up to nine members. The legislature and governor can pack it if they want.
