Despite efforts to maintain the illusion of independence, North Carolina's judiciary is rapidly becoming a highly compromised branch, a proxy in a greater battle between Republicans and Democrats, labor and business interests.
Catharine B. Arrowood, president of North Carolina's Bar Association, rang the alarm in her acceptance speech in June: "Like Bill Murray in Ghostbusters, we are being slimed."
(Catharine Arrowood is not related to John Arrowood, who is running for state appeals court.)
This bold cry from the head of the state's legal association was disturbing, to say the least. She said we're being slimed by dark money used to maintain conservative majorities on ostensibly nonpartisan courts. Slimed by a cloak of secrecy that has descended over many allegations of judicial misconduct. And slimed by three-judge panels selected by a Republican chief justice of the Supreme Court deciding whether Republican General Assembly legislation is constitutional.
"I think Governor McCrory understands the importance of the judiciary and understands that it's a separate branch of government. I'm not sure our legislators do," Arrowood said.
In the final hours of the 2013 legislative session, Gov. McCrory signed a bill to "modify" North Carolina's Judicial Standards Commission—the body in charge of monitoring and disciplining state judges. Previously, pending cases of judicial censure were posted for the public to see. Now all pending cases of judicial misconduct remain confidential.
For the first time in its 100-plus-year history, the North Carolina Bar Association asked a governor to veto a piece of legislation. Not only did Arrowood seek a veto and now a repeal, but so did every living past president of the Bar Association. As a result of the legislation, only the North Carolina Supreme Court can now reprimand or suspend judges. And if there's one thing judges don't like it's censuring other judges. The Judicial Standards Commission has been stripped of most of its regulatory ability.
"So much of the checks and balances of determining our elections have often been guided by the code of ethics but also around the public's ability to monitor our activity," said Supreme Court Justice Cheri Beasley. "I'm not sure really why there was a need to make those censures and sanctions private."
In its upcoming elections, the state supreme court has become the most partisan "nonpartisan" body in North Carolina, and the money is beginning to flow. The seven-member court, which, like the U.S. Supreme Court, occasionally splits along ideological lines, has the final say on matters of the utmost importance for the state. For years the court was mostly Democrat and now it is mostly Republican. Starting in 2012, big, out-of-state PACs began pouring money into North Carolina to maintain a conservative majority.
A conservative PAC called North Carolina Judicial Coalition spent $2.3 million in 2012 defending Republican incumbent Paul Newby, whose reelection preserved the narrow Republican majority 4–3.
This spring, Justice for All NC, a conservative super PAC largely funded by the Republican State Leadership Committee in Washington, D.C., spent $900,000 attempting to unseat primary Supreme Court Justice Robin Hudson—one of two registered Democrats left on the state's supreme judicial body. The attack ad blitz attempted to display her as soft on child molesters. She goes on to face her Republican challenger Eric Levinson in November.
"You have a Legislature controlled by one group and the governor's mansion controlled by the same group, and the judicial branch controlled by people cut from the same cloth," Hudson said. "One of the things I've talked about a lot is there are seven seats on the court for a reason."
Justice Beasley is the other registered Democrat fighting for her seat on the Supreme Court this fall. "These groups are working very hard to take over supreme courts across the country. North Carolina really has to make a decision about what it wants our judiciary to be."
National Republican PACs have good reasons to spend heavily on the Supreme Court. The court decides whether the GOP voter redistricting plan—which re-segregated voting districts to lump together African-American voters—is constitutional.
The redistricting case has been working its way through courts for two years. Eddie Speas, lawyer for the plaintiffs, pushed to get Justice Newby recused from the decision. "The out-of-state outfits that funded his campaign are the same outfits that funded the drawing of the districts that were before the court for decision," Speas said.This motion was denied and the court appears to be taking its time on a decision; nine months have passed without judgment.
"It's clearly a highly important issue. I had been hopeful that it would be decided earlier," Speas said.
Irritated by the plethora of constitutional challenges to their questionable legislation, the governor and Republican General Assembly passed a law to prevent individual superior court judges from ruling on constitutionality, parts of which took effect this month.
As of Sept. 1, all constitutional challenges to state legislation are now heard by three-judge panels. The judges of these panels will be, unsurprisingly, appointed by the Chief Justice of the Supreme Court—either Ola Lewis or Mark Martin depending on the election in November, both Republicans.
"We are very concerned about the three-judge court for a lot of very practical reasons—it leads to the bifurcation of a case," Arrowood of the N.C. Bar Association said. "I know of a number of people in the state who believe it to be unconstitutional."
From 2002 to 2012, North Carolina had a highly successful program of public financing for judicial elections. The way it worked was common-sense: In exchange for swearing off receiving questionable outside money, judicial candidates received an award of public money to spend on their campaigns. Public financing prevented judges from being politically beholden to huge donors, whose cases they might have to eventually hear in their courtrooms. "North Carolina had the best program in the country," said Bert Brandenberg, executive director of D.C.-based nonprofit Justice at Stake. All that is gone now and the floodgates are wide open. There is now no clear path of censuring or recusing judges who are beholden to the same financial and political interests they are deciding.
"There is a multifront war to politicize the bench," Brandenberg said. "We're seeing it play out in a number of different ways."
This article appeared in print with the headline "Judges to buy, sell or rent"