For the court

State Supreme Court Justice Paul Newby faces a strong challenge from Sam Ervin IV.

October 7, 2012 

Just one of the seven seats on the North Carolina Supreme Court is up for election this year, but the race is of more than routine interest. That’s because the outcome is loaded with political potential.

If incumbent Justice Paul Newby retains his seat (winning a second eight-year term) the present political-party divide on the state’s highest court will remain as it is, 4 to 3 Republican. If challenger Sam Ervin IV wins, justices who identify themselves as Democrats will gain the majority.

How much does that matter? For most of the cases this court hears, next to nothing. In a handful, however, political preferences – no matter how much the justices swear they judge every case solely on the facts and the law – have a way of coming to the fore.

That’s particularly true of redistricting, the once-a-decade dogfight in which the major parties mangle and manipulate voting districts so that their side is likely to come out on top. Courts are often called on to make the final calls on redistricting plans. And it’s the rare Supreme Court justice who, after judging such a case “solely on the merits,” reaches a conclusion contrary to the party line.

That’s one reason why Democrats are backing Ervin (grandson of the late Sen. Sam Ervin) and why Republicans are going all out for Newby, to the extent of setting up a super PAC to support their man with spending above and beyond the public financing that Newby (and Ervin) elected to receive. The PAC can raise and spend unlimited sums. Newby, who appears at tea party events, also gets support from Civitas Action of Raleigh.

It’s all perfectly legal, but the effect is to undermine the public financing system and to inject more politics into the Supreme Court. Plus, it erodes public confidence in the judiciary – when big money gets involved, whose tune does justice dance to?

The flip side of all this is that both candidates, Ervin and Newby, are well qualified. Newby can cite the many opinions he’s written and his constitutional expertise. Ervin is an effective judge on the Court of Appeals who previously served on the state Utilities Commission. Both are graduates of distinguished law schools and had extensive legal experience before they became judges. And though many of their endorsements come from predictable quarters – business and industry for Newby, labor and lawyers for Ervin – each man pledges judicial modesty and fairness to all.

For voters with strong political leanings, the candidates’ party identifications may decide the issue. On that score, it’s a sad fact that the Republican-dominated redistricting in effect for this year’s elections was extraordinarily partisan, setting up voting districts that go way out their way to disadvantage Democrats. An Ervin victory might eventually bring North Carolina’s redistricting back toward middle ground.

Newby’s side of the ledger counts endorsements from several former Supreme Court chief justices, two of whom are Democrats. Their argument, not unreasonable, is that a sitting justice who’s doing a good job deserves to stay on the court. Newby takes this a step further, hinting it’s unfortunate that he has to face an opponent. Yet in a system that relies on elections to fill seats on the bench – a system Republicans have championed – challengers have every right to make their case.

To us, Ervin’s challenge to Newby is a credible one, and he has our editorial endorsement. He’s fair, level-headed and less overtly political than the incumbent. Indications are that he would make a fine justice.

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