Ford: Judicial race has a 'super' twist

September 9, 2012 

  • Steve Ford

    Steve Ford, The News & Observer's editorial page editor, has been with the paper since 1981, first as an editor in the news department and, since 1986, as a member of the editorial staff. He has overall responsibility for the opinion pages, reporting to the publisher.

    Ford grew up in Northern Virginia and graduated from Yale University in 1968. An Army veteran, he served in Vietnam as a photographer. He and his wife, Jeanne, live in Cary. They have three grown sons and two grandchildren. He can be reached at or at 829-4512.

Listen to the political handicappers, and it’s troubling to hear how money is taken for granted as the main factor in high-stakes contests to be decided in November – especially contests at the state level.

To the hard-bitten realists, it’s become as if the content of a candidate’s message hardly matters. What matters is the intensity with which it’s spread. The more money, the more intense.

Not that fundraising prowess hasn’t long been hugely important. But with the loosening of rules for corporations (and labor unions, as if they could compete), the picture has a new dimension. So-called super PACs can raise and spend unlimited amounts to boost or blast a candidate – so long as they don’t “coordinate” with their favored candidate’s own campaign.

It’s hard to repeat that proviso with a straight face. No coordination? Consider what Nicholas Confessore of The New York Times reported from the Republican National Convention in Tampa:

“For more than a year, the 2012 campaign has featured two Republican parties: the official one of candidates, party leaders and elected lawmakers, and the unofficial one of super PACs and other outside groups raising and spending tens of millions of dollars to help the Republicans win in November.

“But over four days here, those two parties have all but merged into a unified conservative machine, working inside and outside the system, mixing establishment and grass roots, abiding by campaign laws but also displaying just how flimsy the barriers between them are.”

Potential super PAC influence looms large indeed when candidates’ own campaigns are limited by the rules of public financing, which is meant to curb special interest influence. In North Carolina, Exhibit No. 1 is the race for this fall’s only contested seat on the state Supreme Court.

Justice Paul Newby, seeking a second eight-year term, is challenged by Court of Appeals Judge Sam Ervin IV. Both will accept the $240,100 that the state provides appellate court candidates who raise a threshold amount in private contributions. Once they sign up for the public funds, they can’t accept any more on the private side.

Like candidates for all the state’s appellate judgeships, Newby and Ervin will appear on the ballot without party labels.

In practice, however, partisan affiliations are hung out for all to see, Newby as a Republican and Ervin as a Democrat (he was among the speakers at a breakfast for North Carolina delegates at the party’s national convention last week in Charlotte, telling listeners they shouldn’t want judges “with any ideological or political agenda”).

Is it an awkward system? Totally, but this is the sort of thing that happens when an elected judiciary (which we seem to be stuck with) must be reconciled with tenets of free speech.

The wrinkle here is that Newby is in line to benefit from independent spending by groups that want Republican conservatives to maintain their 4-3 Supreme Court majority. They seek an edge on big, partisan-tinged issues such as redistricting.

Newby professes independence and impartiality, and he has some Democratic ex-judges in his corner. Yet organizers of a super PAC called the N.C. Judicial Coalition – directed by former state GOP chairman and Raleigh mayor Tom Fetzer – obviously see him as a kindred spirit. (The group stakes a bipartisan claim by virtue of support from former Democratic Chief Justice Burley Mitchell, who advances the reasonable notion that an incumbent judge doing a decent job shouldn’t be ousted. That’s a fine principle, but not one the coalition likely would rally behind if Newby were a liberal.)

It’s not clear how much the coalition might spend on Newby’s behalf. But Civitas Action, a group under the umbrella of conservative Raleigh retail executive Art Pope, has plunked down $72,000 for a pro-Newby radio ad push. An N&O report said the ad buy came after Civitas Action received $75,000 from a Washington-area outfit called the Judicial Crisis Network – which doesn’t have to disclose its donors.

What’s known is that along with “fair and impartial” judges, the network favors limited government. So in many respects does the N.C. Chamber, voice of big business in the state, whose PAC recently gave Newby its first-ever judicial endorsement (no money is involved). Does the chamber see him as a potential vote to impede pesky regulations? You think?

Well, it’s an election. Voters and interest groups are free to support candidates for whatever reasons they want. But unless a pro-Ervin super PAC suddenly materializes, Newby will have a clear advertising edge.

The public financing law as originally set up would give Ervin more money to counter extra spending on his opponent’s behalf. But in keeping with the U.S. Supreme Court’s hard-to-fathom decision last year in a pivotal Arizona case, U.S. District Judge Louise Flanagan in May ruled that such matching funds no longer are permitted.

Advantage, Newby – in a state that recognized the pitfalls in money-soaked judicial elections, but that struggles to hold the line against those who want to buy their own brand of justice.

Editorial page editor Steve Ford can be reached at 919-829-4512 or at

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