I have tried my best to ignore Sen. Phil Berger’s response to Gov. Roy Cooper’s State of the State address. Last week, in an effort to bolster waning self-control, I even threw away my initial copy of the text. Out of sight, I figured, out of mind. But, as Justice Scalia once wrote, it’s sometimes necessary to “respond to arguments (so) outrageous (that) it is beyond human nature to leave (them) unanswered.”
Gov. Cooper’s address, as is his wont, was a call for “common ground” – urging cooperation and the recognition of shared interest in pursuit of a bolstered future. In reply, Berger angrily informed “the Left’s new champion” who had merely “squeaked into office” that there would “be no retreat to (your) troubled past.” Cooper could place the proffered olive branch in some locus unlikely to enjoy the benefit of sunlight. Being the most powerful man in North Carolina has, apparently, not improved the senator’s geniality.
Berger’s address was a paean to the last six years of Republican legislative rule. The senator and his colleagues have transformed North Carolina with one bold, path-breaking and courageous measure after another. Their entire revolutionary “platform,” Berger instructed, was guided by a maxim from Henry David Thoreau: “That government is best which governs least.” I know you think I’m joking.
This is the General Assembly that inserted itself between a woman and her doctor, demanding an unneeded or even psychologically harmful sonogram, before obtaining an abortion. The doctor was then to display the unwanted image in her patient’s face and repeat a legislatively mandated script in her ear, in a statist crusade to persuade, or coerce, or intimidate, or terrify her from the exercise of her constitutional rights.
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Berger and his colleagues decreed that lesbians and gay men can’t marry their chosen partners and, later, that government officials can discriminate against them when the mood strikes. They introduced an endless cascade of hurdles to make it harder to vote. And, of course, they inserted policemen, birth certificates and genitalia inspections into our bathroom regimens. Berger’s idea of “governing least” has made North Carolina a laughing stock across the globe and a shunned, boycotted pariah here at home. If Thoreau were alive, he’d drown himself in Walden Pond.
Berger next proclaimed that he had ushered in a new era of political candor. These truth-telling legislators are “crystal clear” about their goals and policies and they “immediately” set out to do “exactly what they said they’d do.” Indeed.
Actually, they enacted the nation’s harshest voter suppression law to stop literally non-existent voter fraud. Even with Pat McCrory’s gubernatorial race on the line, with party officials casting humiliating aspersions at their own electoral commission partisans, no trace of abuse could be found. Still, they cling to the lie. HB2 protected against fanciful and disproven transgender assault. Local elections were upended in the falsified name of democracy. Even their claim to be tax cutters is mostly untrue – as they raise the bill for low and middle income Tar Heels in toadyish service to the very rich. They govern via perjury, not probity. They are truth tellers in exactly the same sense their president is.
But, I must concede, even these farcical and absurdist Berger claims pale in comparison, in terms of brashness, to his concluding crescendo. There, Berger deemed it essential that he and his lot stand tall to thwart the “divisiveness and hyper-partisanship” of Roy Cooper. Good Lord.
Our notorious General Assembly has re-structured, and often dismantled, crucial institutions and safeguards of our judicial system, our electoral and legislative processes, our administrative and enforcement mechanisms, our local governments, our universities and community colleges, our non-profit and civil sectors, our public schools, and even our corporate establishments, simply to secure partisan advantage. All has fallen, in the Berger era, before an imposed tidal wave of partisanship. Nothing matters, it is clear, except Republican ascendancy. You would think Berger’s charges would have literally turned to ashes in his mouth.
And all this is necessary, apparently, because some misbegotten miscreants have had the temerity to get in Berger’s way. They have, he says, “ginned up great controversy and false outrage, organized vulgar rallies and protests, disrupted public meetings, attempted to sabotage the state’s economy and put regular North Carolinians out of business.” My my.
So Berger’s indignant. Is he ever. He demands submission – from Cooper, from his adversaries, from the people of North Carolina. But we’re Tar Heels. He ain’t gonna get it.
Gene Nichol is Boyd Tinsley distinguished professor of law at the University of North Carolina.