Politics & Government

Phil Berger Jr., son of powerful Republican lawmaker, wants seat on NC Supreme Court

The son of one of North Carolina’s most powerful Republican lawmakers wants a seat on the state Supreme Court.

Phil Berger Jr., a judge on the N.C. Court of Appeals since 2017, announced on his Facebook page Monday morning that he would like to run for a seat on the state’s highest court in 2020.

Berger is the son of N.C. Senate leader Phil Berger, as well as his former law partner. They are both Republicans.

Berger’s term on the Court of Appeals isn’t up until 2024. But with the news Friday that Supreme Court Chief Justice Mark Martin will retire next month to become the dean of Regent University’s law school in Virginia, there will soon be a shakeup on the Supreme Court.

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Martin’s departure will leave the Supreme Court with only one remaining Republican justice, Paul Newby. Newby is the most senior justice on the court, having served since 2005, and has expressed his willingness to take over Martin’s role as chief justice.

But that decision is up to Democratic Gov. Roy Cooper, who has the power to appoint judges to vacant seats. If Cooper appoints Newby as the chief justice, Cooper would then appoint someone else to fill Newby’s spot as an associate justice.

Cooper has not yet said who he will appoint as chief justice. The News & Observer reported Friday that Cooper said that “I will carefully consider his replacement in the coming days.”

Newby’s current terms ends in 2020, and he told the North State Journal he plans to run for the chief justice’s seat that year.

Berger, in turn, said he is “interested in running” in 2020 for Newby’s seat as an associate justice.

“If you think we need a conservative justice on the Supreme Court who is dedicated to the Constitution and the people of this State, please let me know,” Berger wrote on his Facebook page.

If Newby runs for the chief justice job in 2020 and wins, he would not be able to serve a whole term as chief justice. That term would last until the end of 2028, but Newby will hit the court’s mandatory retirement age of 72 at the end of May 2027.

If Berger leaves the Court of Appeals for the Supreme Court in the middle of his term, Cooper would not be able to appoint a replacement for him as he can for the Supreme Court. That’s because the legislature passed a new law after Cooper became governor to shrink the size of the court and thus take away Cooper’s power to fill vacancies.

That prompted one Republican judge, Doug McCullough, to resign in protest in 2017, allowing Cooper to replace him with Democratic judge John Arrowood before the law took effect. McCullough wrote that “I did not want my legacy to be the elimination of a seat and the impairment of a court that I have served on,” The N&O reported at the time.

While the N.C. Supreme Court currently has a 5-2 Democratic majority, which will become 6-1 if Cooper appoints a Democrat after Martin leaves, the N.C. Court of Appeals has an 8-7 Republican majority — at least for a couple more months.

One Republican judge on the Court of Appeals, Robert Hunter, will reach the court’s mandatory retirement age of 72 this March, at which point the court will have an even 7-7 partisan split since Cooper won’t be able to fill the vacancy. If Berger were to leave the court after that, the Court of Appeals would then have a Democratic majority.

Before Berger joined the Court of Appeals two years ago, he had also worked as a judge in the state’s quasi-judicial Office of Administrative Hearings and as the elected district attorney for Rockingham County. In his spare time he coaches youth football, according to his official biography on the N.C. Judicial Branch’s website.

Last summer Bob Hall, the former leader of watchdog group Democracy NC, filed an ethics complaint against him.

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The complaint alleged that during his 2016 campaign for the Court of Appeals, Berger “failed to disclose who paid for food, drinks and other expenses at his 2016 campaign fundraisers” and that “several of the people listed as donors in his disclosure reports say they didn’t contribute,” The New & Observer reported in July.

A spokesman for the N.C. Board of Elections, Pat Gannon, said in an email Monday that the investigation is ongoing and he couldn’t comment further on it.

Will Doran reports on North Carolina politics, with a focus on state employees and agencies. In 2016 he started The News & Observer’s fact-checking partnership, PolitiFact NC, and before that he reported on local governments around the Triangle. Contact him at wdoran@newsobserver.com or (919) 836-2858.