NC Supreme Court rejects fairness by allowing Justice Berger to hear cases involving his father | Opinion

That the Supreme Court of North Carolina is little more than a Republican caucus has been clear for more than a year.

Still, the court’s ruling last week that Justice Philip Berger Jr. can sit in judgment of cases involving his father, state Senate leader Phil Berger, is a stunning display of how the court’s independence has curdled into arrogant partisanship.

In a vote along party lines, the court voted to reject a request by Gov. Roy Cooper that Justice Berger recuse himself in two cases. The most significant case is a challenge to a law that would strip the governor from controlling the administration of elections. The governor’s appointment powers for state and local boards of elections would be given to legislative leaders, including Sen. Berger.

The challenged law calls for membership of the state and local boards of elections to be evenly split between political parties – rather than giving the governor’s party a majority. The change would invite deadlocks whose resolution would be decided by the legislature. That would effectively put the legislature in charge of elections despite the state constitution’s assigning that authority to the governor.

Republicans gained a 5-2 majority on the court after the 2022 elections, upending the 4-3 majority Democrats enjoyed on the previous court. Cooper’s request to have Justice Berger removed was an act of hope over experience. Perhaps the governor thought that a ray of conscience or a clear reading of the law would persuade one of the Republican justices to admit the absurdity of a son sitting in judgment of his father.

Berger the younger deferred to his fellow justices to decide the matter, but that hardly brought an independent judgment. Following a tortured line of reasoning, the four remaining Republican justices found, in effect, that Sen. Berger was not Justice Berger’s father. Rather, they found that the senator is a disembodied legal entity who has been named in the lawsuit only in his official capacity as the Senate’s president pro tempore.

This argument would be implausible in most cases, but particularly so in this one. Sen. Berger has ruled the state Senate for 13 years and repeatedly imposed his will on his caucus since day one. He has aggressively sought to take power from the executive branch, even when a Republican, Pat McCrory, was governor.

Sen. Berger has presided over the most egregious gerrymandering in the nation and is now seeking to have the final word on the administration – and perhaps the outcome – of elections. He is directly and personally involved in pushing the disputed legislation.

The Republican justices assure us that Berger will rule dispassionately on matters involving his father. We’re supposed to believe that because in another case Berger said he would do so..

The court’s majority opinion says: “In his order denying a similar recusal motion in another case, Justice Berger explained that the lawsuit was really against the State, not against his father, and that he was confident in his ability to discharge the duties of his office in a fair and impartial manner. We believe that Justice Berger Jr. can and will execute his responsibilities in this case fairly and impartially. The motion and suggestion of recusal is hereby DENIED.”

What’s the state’s top court has actually denied is the North Carolina Code of Judicial Conduct. And, for good measure, it also ignored the 14th Amendment’s requirement that legal matters be resolved through a fair process.

In a dissent joined by the court’s other Democrat, Justice Anita Earls, Justice Allison Riggs noted that the judicial code calls for a judge to disqualify himself or herself “in a proceeding in which the judge’s impartiality may reasonably be questioned.” The code makes it clear that a case involving a judge’s relative is such a proceeding.

“The Code of Judicial Conduct does not exempt a judge from recusal even when their family member is a party in their official capacity,” she wrote.

Riggs said the code so settles the matter that she didn’t need to argue how Berger’s failure to step away from the case violates the 14th Amendment’s guarantee of due process.

In refusing to remove Justice Berger, the court’s majority has instead removed any appearance of fairness.