Justice Newby in a bind

A state Supreme Court justice boosted by the GOP should step aside in a sensitive case.

November 26, 2012 

There was no mystery as to why some outside groups spent heavily to promote the re-election of Paul Newby as an associate justice on the N.C. Supreme Court. They were looking out for Republican Party interests.

Newby’s victory nailed down a 4-3 GOP advantage on the officially nonpartisan court. This, at a time when cases with intensely partisan ramifications are in the pipeline – in particular, a challenge to the Republican legislature’s redrawing of voting district boundaries to give the party’s candidates a big advantage.

Now the people behind that challenge are arguing that even though Newby’s supporters won the election battle, they should lose the war.

A coalition of groups that includes the NAACP’s North Carolina chapter claims it wouldn’t pass the ethics smell test if Newby, having been propelled to victory by a torrent of advertising paid for by people who want him to rule in the GOP’s favor on redistricting, went on to participate in hearing the case.

From the look of things, Newby might not have much choice except to recuse himself if he wants to abide by U.S. Supreme Court precedent as well as uphold common-sense standards of judicial integrity.

There’s no need to assume that Newby automatically would vote to uphold the Republican-drawn maps – which helped the party capture three more of the state’s congressional seats and add to its majorities in both houses of the legislature.

The idea is that when groups with specific agendas boost a winning judicial candidate to such an extent that their support was pivotal to his success, then the judge has a conflict when cases bearing on that agenda come before him. Unless the judge takes himself out of the game, his ruling could be perceived as tainted because of outside influence, when what should decide the matter is a fair and impartial application of the law.

The U.S. Supreme Court confronted this issue in a 2009 case out of West Virginia. The head of a coal company that was appealing a $50 million jury verdict spent some $3 million supporting a candidate for the state Supreme Court, where the appeal was headed. The candidate won, defeating an incumbent. The court in Washington ruled that because of the scale and effect of the coal executive’s spending, the new justice could not take part in considering the appeal.

Newby benefited from about $2.5 million in outside spending as he fended off a challenge by state Court of Appeals Judge Sam Ervin IV, who’s a Democrat. A large chunk of that came from the Republican State Leadership Committee, a group devoted to partisan redistricting efforts and closely involved with such efforts in North Carolina.

The money financed an ad barrage in the campaign’s closing weeks (cue the banjo!) that, on the basis of polls, arguably put Newby over the top.

Newby asserts his impartiality, and he could have every intention of considering the redistricting case on its merits.

But when supporters with such a vested interest poured that kind of money into his campaign, they did so with an expectation of results. That puts him in an ethical bind. He can escape it through recusal – the honorable path.

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