State GOP Executive Director Dallas Woodhouse put Democrats on the Supreme Court on notice last week that they could face impeachment if they decide against Republican leaders in a lawsuit over constitutional amendments.
Democratic Gov. Roy Cooper is suing to keep two proposed amendments off the ballot, arguing the language is misleading. The state NAACP and environmental groups want to keep four questions off the ballot that the legislature placed there.
A three-judge panel ordered two of the amendments off the ballot this week. Legislative leaders are appealing to the state Court of Appeals and the NAACP is appealing to the state Supreme Court.
It’s not often party leaders talk about impeaching justices, but it has happened before. Republican Chief Justice David Furches and Associate Justice Robert M. Douglas were impeached in 1901. The state Senate acquitted them, and the justices remained on the bench. Votes of two-thirds of the senators present are needed for a conviction.
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On the surface, the conflict was over paying a shellfish inspector. Underlying the charge was the desire of Democrats in the legislature to have their white supremacy laws upheld, author Howard Covington wrote in an email. Covington included the account in a biography of former Supreme Court Justice Henry Frye.
Lindley S. Butler, in a short biography of Douglas published by UNC Press, wrote that Democrats worried Republican justices might try to overturn a constitutional amendment requiring a literacy tax and a poll tax, but which exempted illiterate whites.
State statute sets out reasons for impeachment as “commission of any felony, or the commission of any misdemeanor involving moral turpitude, or for malfeasance in office, or for willful neglect of duty.”
A spokesman for House Speaker Tim Moore said in an email last week that House leaders had not discussed impeachment. An email Friday night from Senate leader Phil Berger’s office said, “While we understand the concern that activist judges could stop the people from voting on constitutional amendments, there are no plans to impeach judges and the caucus has not discussed it.”
A state House committee voted to start an impeachment investigation of Secretary of State Elaine Marshall last year, but the effort fizzled. The Republican legislator pushing for her impeachment resigned.
Over the last few years, the legislature has worked to reshape the courts. It has made all judicial races partisan, voted to reduce the Court of Appeals from 15 to 12 judges, canceled this year’s primaries for judicial races, and took a few stabs at statewide judicial redistricting.
Two former Supreme Court justices, a Democrat and a Republican, said a court decision against Republican legislative leaders in the amendments lawsuit would not be grounds for impeachment.
“Of course not,” said Burley Mitchell, a retired chief justice. The legislature could do it anyway, he said — “malfeasance is in the eye of the beholder” — but it would bring a storm of negative public reaction.
“It would be so dramatic, it might likely have more negative public perception and reaction than the impeachment would be worth to them,” said Mitchell, a Democrat.
The 1901 impeachments were “just pure partisan politics and not a proud moment in our history,” Mitchell said. He doubts the latest impeachment talk will turn into action.
“When it comes right down to it, cooler heads will prevail, and we won’t hear anymore about it,” he said.
Former Supreme Court Justice Bob Orr, a Republican, said there were rumblings about impeachment when he was on the bench in 2002, when Republicans decided against the Democratic majority in the legislature on redistricting.
“I don’t think anybody out there took them too seriously,” Orr said. The point then and now was intimidation, he said.
The court, including the three-judge panel, “has it in the back of their mind that the General Assembly could and might even consider that,” Orr said.
Woodhouse’s talk of possible impeachment is just talk, Orr said, “but it has some historical precedent to it.”