Checks and balances. This is a phrase we often hear in the media when describing the separation of powers incorporated in the constitutional form of government that exists in the United States, as well as the State of North Carolina. Under our United States Constitution and North Carolina Constitution, we have legislative, executive and judicial branches of government. They all serve distinct purposes and all have unique ways to “check” the act of another branch and also “balance” the powers and authority held by those branches. Historically, the execution of those checks and balances has been carried out in the halls of the capitol building, the executive’s residence and in our federal and state courthouses. Here in North Carolina, the General Assembly enacts legislation, the governor executes and enforces those laws and our courts interpret and apply the law through the judicial rulings issued by the trial court and then our appellate courts. Lately, and unfortunately, we are seeing more and more of those checks and balances being carried out in newsprint, television interviews and in social media. And the messages do not always intellectually check another branch’s actions, but attempt to check the branch and its members on a personal level.
The American Board of Trial Advocates (ABOTA) is a national, nonpartisan organization consisting of equal balance of plaintiff and defense lawyers who regularly interact with our federal and state judiciary. On behalf of the Eastern North Carolina Chapter of ABOTA, we strongly encourage our federal and state elected officials to stop the personal attacks that impugn the integrity and authority of our judicial branch. ABOTA is dedicated to preserving a fair and impartial judiciary and the right to a trial by jury. However, recent attacks questioning the credibility of the court’s members also threaten to harm the fairness of jury trials, which these same judges oversee. Our judges are accountable to the law, not to special interests or political pressure.
While recognizing the right of our elected officials to exercise their freedom of speech under the First Amendment, we do not believe it is proper for those officials to personally attack members of the judiciary through statements that question the dignity of the judge, or imply personal bias as the basis of a judicial ruling with which the speaker does not agree. Our elected officials are role models and their behavior and public statements directly impact what our citizenry - particularly our youth - come to accept as normalized behavior. Maintaining proper respect for the court system is critical to our civil and criminal justice system, and we call on our elected officials to take the lead in showing that respect, even if they disagree with specific judicial decisions.
We do not want to be a country where our judiciary is dragged into the political and partisan process we have historically associated and accepted as part of the creation of legislation,. Our Founding Fathers did not envision this when the Constitution was drafted and we should not now tolerate it. Our system of government intends for judges to be impartial and not swayed by public opinion or political preferences. This impartiality is carried out through codes of judicial conduct that restrict judges from responding to public criticism or making public statements on political issues. As citizens and lawyers, we feel it is our duty to speak out on their behalf when statements or conduct by elected officials threaten or undermine the proper function of our courts.
Recent comments by President Trump about U.S. District Judge James L. Robart refer to him as “this so-called judge.” President Trump should know and understand that Judge Robart, who was nominated by President George W. Bush, is not a “so-called judge” because he was confirmed by the U.S. Senate through a vote of 99-0 in 2004. It is certainly understandable that President Trump may disagree with a ruling from Judge Robart, but that is no basis to question his authority nor suggest his integrity should be challenged.
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In our own state, leaders in the General Assembly recently acted in defiance of a court ruling regarding the approval of Gov. Cooper’s cabinet appointees. Proper respect for the court system requires that such rulings be obeyed unless and until overturned by a higher court. Parties to litigation generally have the right to appeal a ruling to such higher courts and that right exists in this situation. By failing to adhere to the three-judge panel’s ruling, we see actions implying one branch of our government cannot be checked by another branch, even though such check is in our constitution. We believe the parties to this case should acknowledge the proper role of our state’s courts, which includes interpreting the constitution.
F. Dulin Kelly, ABOTA National President, may have put it best when he said “We respectfully urge President Trump to extend to the Judicial branch and its members the same degree of dignity and respect that he would expect our citizens to show to the Executive branch of our government.” We would ask our General Assembly to extend that same degree of dignity and respect to our state’s judiciary. Lately, it seems supporters of both parties feel freer to make critical comments about our elected leaders in a manner lacking respect for the office for which that leader holds. I have heard many judges in North Carolina declare that when a bailiff says “All rise!” to those in a courtroom, that we are being asked to rise for the office the judge holds, rather than for the judge him or herself. We hope our elected officials show that same honor and respect for the office of any judge who may rule against their party or its policies and that they refrain from comments or actions that lessen the confidence we have in our judiciary. North Carolinians not only need this, but deserve this from our elected officials.
J. Nicholas Ellis is president, Eastern North Carolina Chapter of the American Board of Trial Advocates, an organization of lawyers who represent plaintiffs and defendants in civil litigation.