Op-Ed

King Berger: ‘Will no one rid me of these meddlesome judges?’

Senate leader Phil Berger, R-Rockingham, takes questions from reporters as the Senate's budget proposal is presented during a press conference on Tuesday, May 9, 2017.
Senate leader Phil Berger, R-Rockingham, takes questions from reporters as the Senate's budget proposal is presented during a press conference on Tuesday, May 9, 2017. NCInsider.com

Thomas More: You threaten like a dockside bully.

Cromwell: How should I threaten?

Thomas More: Like a minister of state. With justice.

Robert Bolt, A Man For All Seasons

Last week brought us the gravest potential threat to the independence and integrity of the state judicial system in North Carolina history. Senate Rules Chair Bill Rabon introduced SB 698, the “Increase Voter Accountability of Judges” resolution. The proposal calls for a constitutional amendment to end every North Carolina judge’s term at close of 2018. Thereafter, all 403 state judges – district court, superior court, court of appeals and supreme court – would have their terms reduced to two years. Presently, our district court judges are elected to four-year terms. All others serve for eight. Unsurprisingly, no other American state has adopted two-year terms for its judges – believing it would crush judicial independence and effectiveness. Once again, we seek to lead the nation in the destruction of constitutional norms.

Senate leader Phil Berger and his crew have determined, apparently, that gerrymandering the judges’ districts, eliminating their primaries, restricting their powers of judicial review, ending public funding for their campaigns, manipulating the size of the court of appeals, stacking individual state Supreme Court elections and becoming the first state in a century to demand the partisan election of judges isn’t enough to deliver the precise courts the Republicans require. Clearing the whole offending slate and forcing them to run constant, expensive, relentless and hyper-partisan campaigns seems now to be the trick. No matter that judges take oaths to be accountable to the law and the Constitution, not to the voters. Or that our jurists would have little time for their actual work, given the demands of perpetual campaigning. Party fealty, again, is all that matters. Independent, professional, reasoned judicial decision-making – the rule of law – is old school. Who needs it in the New Carolina?

There are, seemingly, two distinct readings afoot to explain the ultra-radical proposal. The first is that our leaders, frustrated with the impudence of the federal judiciary’s repeated invalidation of their pioneering, constitution-defying handiwork, have chosen to decimate the only judiciary they can get their vengeful hands on, the state one. Lead racial gerrymander artist, state Rep. David Lewis, spouts this claim: “If you’re going to act like a legislator, (we’re going to) make you run like one.”

If the federal courts are immune from subjugation, their state cousins will have to do. This mirrors the General Assembly’s response to the gubernatorial and attorney general elections – if we can’t control another branch of government, we’ll demolish it. The unyielding will feel the full weight of our ascendancy.

The second theory is that this is something of a misdirection play. Berger is adamant, given his frustrations, to adopt a judicial selection process that allows him to pick our judges. He refers to the desired mechanism as “merit selection.” What he actually means by that, though, is legislative selection. You don’t have to worry about judicial independence if they owe you their jobs.

Unfortunately, by Berger’s calculus, North Carolina’s judges have reacted with great hostility to his kind offer to be their overlord. Swapping independence for subservience, they seem to think, isn’t much of a bargain. If you’re used to being guided by the law books, substituting the approval of the senator from Eden sounds like a raw deal. Not all are yet convinced of the majesty of the burgeoning Berger dictatorship. Oddly, they think they still have important jobs to do.

Phil Berger, it is safe to say, is unaccustomed to such insolence. So, the second theory goes, SB 698 is really just Berger’s threatened hammer:

Come my way, your honors, or I’ll destroy the lot of you. Notice the sword above your heads. After you pledge allegiance, you’ll find we get along. But when I press for legislative selection, I don’t want to hear a word. I run North Carolina. Don’t get in my way or I’ll give you cause to regret it.

I don’t know which of these interpretations is correct. I don’t even know which one is worse – a Senate leader (and a lawyer) who would destroy the state courts on a whim, or one who uses the threat of destruction, like a dockside bully, to get his way. None of this changes by the naming of a state Senate committee Tuesday to study judicial reform. Berger’s goal, writ large, has nothing to do with assuring the best justice system. Partisan omnipotence remains the lodestar. And it leaves nothing in its wake.

Gene Nichol is Boyd Tinsley distinguished professor of law at the University of North Carolina.

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