Court bashing has become endemic in state legislatures across the country, as lawmakers seek to rein in an independent judiciary.
North Carolina’s Republican legislators have received considerable attention, both here and nationally, as they have considered fiddling with how judges are chosen, the size of courts, gerrymandering their districts, the length of their terms, the partisan nature of their races, and the number of judges.
But so far they haven’t gone as far as Pennsylvania lawmakers who have threatened to impeach five state Supreme Court justices who struck down that state’s congressional map.
A recent survey funded by the National Science Foundation found that between 2008 and 2016, 1,700 court-curbing bills had been introduced in the 50 states proposing such things as new recusal rules for judges, limitations on campaign contributions for judicial candidates, changes in how judges are elected and bills that would allow legislative overrides of court decisions. The study was conducted by Meghan Leonard, associate political science professor at Illinois State University.
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“There is an effort to try to curtail the judiciary or at the very least to make sure the legislature has a place at the table when it comes to judicial selection and judicial retention,” said Bill Raftery, a senior analyst at the National Center for State Courts in Williamsburg, Virginia, who has tracked such legislation for years.
The legislative efforts have usually been made through budget power, judge selection, cutting their terms, or impeachment.
Few states have been more active than North Carolina, where a raft of court-curbing bills have been proposed, a few enacted, and many more talked about in the Legislative Building on Jones Street.
The activity comes as GOP lawmakers have been frustrated as law after law has been struck down by federal and state courts, including congressional and legislative redistricting, a voter identification requirement, a law requiring women who receive an abortion to first have an ultrasound, and a law ending tenure for existing teachers.
The judicial branch in the American system of government is designed to act as a check on the executive and legislative branches of government, making sure they color within the lines of the state and national constitutions.
“The legislature will often look at the courts not as an independent branch of government, but as a recalcitrant agency that needs to be brought to heel,” Raftery said. “That makes perfectly logical sense if you are talking about say, the Department of Motor Vehicles whose very existence is based on the Transportation Department, which are all creatures of statute. They are all there by the good graces of the General Assembly.’’
“But the judiciary is different,” Raftery said. “One of the facts that gets lost here is the judiciary is unlike any other entity that appears before the legislature. They are effectively equals.”
There has always been tension, and Raftery notes that court-bashing is not new.
In the 1800s, New Hampshire’s legislature disbanded the state Supreme Court five times.
When the Democrats took political control of North Carolina in 1901, they were afraid their handiwork — including disenfranchising black voters — would be overturned by the state Supreme Court. So the Democratic-controlled legislature impeached two Republican Supreme Court justices on trumped up charges. After a 14-day trial, the Senate voted narrowly to acquit.
The GOP legislature has not tried anything that dramatic, but they pushed bills to reinstate partisan labels on lower court judicial elections, to reduce the number of appellate justices, to gerrymander judicial districts and to reduce judicial terms to two years.
More recently a GOP plan has emerged to abandon the election of judges for an appointment process that would give legislators an important role in deciding who sits on the bench.
Rep. Joe John, a Wake County Democrat, calls it “a war on the independent judiciary.” John served 25 years on the bench as a district, superior and appeals court judge.
John, who has held several town halls on the issue, said there is no mystery why. The Republican lawmakers have been losing in court.
“Overwhelmingly the suits that have been brought against the legislation passed the last two-three years by the General Assembly have been successful,’’ John said. “They (the legislature) have just overreached.”
The GOP legislature, John argues, is looking for ways to elect a more partisan judiciary that will uphold the laws it passes.
Sen. Dan Barrett, a Davie County Republican, argues that the Republicans are not pushing for anything that North Carolina has not done before, or that independent groups have not advocated.
He notes that judges were appointed by the legislature from 1776 until 1868 under the antebellum Constitution.
Barrett also says it is incorrect to assert that the legislature’s decision to move back to partisan elections threatens the judiciary’s independence, noting that that North Carolina had partisan judicial elections from 1868 until 1996.
But John, the Democrat, said North Carolina is the first state in 100 years to flip back from nonpartisan to partisan elections. And he says that through most of that period when judges ran with party labels, North Carolina was a one-party state. Until recently, John said, even two-party judicial elections did not have the nasty, partisan tone that they have today.
Republicans have labeled the changes in the courts "judicial reform" and have noted that merit selection has been a goal of groups such as the North Carolina Bar Association for 30 years.
But this effort does not look anything like past major court reform efforts such as when moderate Democratic Gov. Luther Hodges in 1955 ordered a study, known as the Bell Commission, that examined every facet of the court system. The Bell Commission took a decade, and involved every group with a stake in the court system, before reform was achieved in 1967.
The current GOP effort has all the earmarks of a seat-of-the pants partisan effort to pack the courts with more Republicans.