NC Supreme Court justice criticizes a fellow GOP judge for not weighing party in hiring

How North Carolina’s top courts have turned increasingly partisan is a long story, but fortunately state Supreme Court Justice Phil Berger Jr. has provided what he calls “a cliff notes version.”

The Republican justice and son of the Republican leader of the state Senate recently suggested that the appellate courts should be a kind of Tammany Hall, where jobs are awarded and judicial candidates are selected based not on qualifications, but party loyalty.

Responding to an individual’s Facebook query to him about the Republican Court of Appeals primary between chief Court of Appeals Judge Donna Stroud and District Court Judge Beth Freshwater Smith, Berger explained why he is supporting Stroud’s challenger.

“I can go into as much detail as you like,” Berger said, “but here is the cliff notes version.”

Berger said Smith is a former prosecutor and “solid conservative” who has support from law enforcement groups, a statewide gun rights group “and most importantly, other judges who serve on the COA [Court of Appeals].”

Then the first-term justice and former Court of Appeals judge got to the heart of the matter: Stroud had hired the “dems candidate” for clerk of the Court of Appeals and “shut out qualified Republicans, including one of my former clerks, who also worked with 2 other GOP judges.”

Berger’s response went into the details of the votes of the court’s 15 judges. There are 10 Republicans and five Democrats, but the vote came out in favor of the “dems candidate” 8-7. After some Republican judges requested a second tally, the result was the same.

Berger blamed Stroud for the miscarriage of patronage. “Donna whipped the votes and shut out qualified GOP candidates. Some who worked for years in GOP politics,” he said.

In other words: A Republican chief judge didn’t weigh party affiliation in hiring for a nonpartisan administrative post. Throw her out.

Berger’s response is part of his growing history of flouting the niceties of appearing to be an independent and nonpartisan jurist. He touts Republican candidates and appears at political fundraisers and, famously, has refused to recuse himself from a constitutional case in which his father, the state Senate’s president pro tempore, is a defendant.

Nonetheless, the bald partisanship of this response, now widely circulated among the legal community, has left some lawyers wondering how deep politics can run in the judiciary before it damages a supposedly unbiased court. On one level, this is heavy politicking by a justice who will not be up for reelection until 2028. On another, a justice of the state Supreme Court appears to be saying that the courts should base their hiring on party loyalty.

Berger could not be reached for comment.

Stroud said Berger and his allies on the Court of Appeals have exposed personnel information down to the level of revealing the results of confidential votes on a job applicant. She said in a statement: “Neither I nor any other judge should disclose details of this confidential process outside the Court of Appeals.”

A couple of notes. The clerk who was hired last summer, Eugene Soar, is registered as unaffiliated and has extensive experience with the court in a variety of roles. The job as posted required at least 10 years of experience, a requirement that Berger’s former clerk does not appear to meet.

In a healthier legal environment, the judicial code of conduct would keep judges from plunging into politics when they are years away from facing the voters. But in North Carolina, judges and justices can evade that restraint by formally declaring themselves a candidate for reelection just days after they’re sworn in.

Thomas Metzloff, a Duke law professor and a former advisory member to the North Carolina State Bar Ethics Committee, said jurists who effectively declare themselves “perpetual candidates” violate the spirit of the judicial ethics code in North Carolina.

“It’s not what was intended,” he said. “Their role as political actors was meant to be limited to periods of their active candidacy.”

The Supreme Court sets the code of judicial conduct and the Republican chief justice and Republican leaders of the legislature appoint the majority of the Judicial Standards Commission, the 13-member body that enforces it. Given that makeup, it’s unlikely the commission will rein in judicial politicking anytime soon, no matter how much confidence in the courts suffers and the right to a fair hearing is put at risk.

That’s not the Cliffs Notes version. That’s the whole, sad story.

This story was originally published May 11, 2022 at 9:37 AM.