Op-Ed

In N.C.’s capital, the rule of law is trampled by arrogance

Superior Court Judge Donald Stephens was prevented from speaking at a meeting of the Senate Judiciary Committee.
Superior Court Judge Donald Stephens was prevented from speaking at a meeting of the Senate Judiciary Committee. clowenst@newsobserver.com

With the retirement of Howdy Manning a couple of years ago, the title of most respected North Carolina trial judge fell, in the eyes of the state’s legal community, to Donald Stephens – the senior superior court judge of Wake County. When Judge Stephens stepped down in November at 72 after a remarkable 33 years on the bench, Chief Justice Mark Martin applauded a great career – noting Stephens had “served with integrity, with excellence, and with an unwavering commitment to the rule of law and justice.”

Stephens has been a tough and skilled public servant all of his professional life. After graduating from the Carolina law school, he served with distinction as a captain in the Marine Corps. To those who knew him, it showed. When he came back home, he joined the Durham District Attorney’s Office and, after three years of putting folks behind bars locally, he became a special prosecutor for the Attorney General. He was appointed special superior court judge in 1984 and was elected resident superior court judge two years later. He’s been reelected ever since, and when he stepped down, he was the longest-serving superior court judge in Wake County.

Stephens handled high-visibility cases with a firm, fair, no-nonsense command – including murder cases like Ann Miller and Jason Young and political firestorms like Agriculture Commissioner Meg Scott Phipps and Speaker Jim Black. He was a judge, old school, not a politician. Good lawyers liked to appear before him – because they knew he’d shoot straight and play by the rules – though it wouldn’t be an easy ride. His courtroom was no place for the unprepared. Stephens explained, “The best politics is working hard, doing a good job, and trying to get it right.” In perfect, if too rare, testament to his profession, he noted that “sometimes the law requires that you rule differently than your heart desires.” As I said, rare.

Last week the Senate Judiciary Committee again considered matters concerning the selection of judges. Republican lawyer Scott Gaylord was slated to testify. Gaylord has represented the General Assembly in an ever-expanding legal docket challenging the constitutionality of various path-breaking government alterations. Governor Cooper was invited to send a representative as well. He asked the now-retired Stephens to appear.

Republican committee chair Sen. Dan Bishop of Charlotte opened the meeting by announcing he wouldn’t let Judge Stephens speak. Bishop said Stephens wasn’t employed by Cooper, so he was out. Sen. Floyd McKissick repeatedly asked that North Carolina’s most esteemed and experienced jurist be allowed to testify. Bishop cut McKissick off. Reminding all that, as chair, he and only he had the power, Bishop said Stephens wouldn’t be allowed to the podium. Democratic committee members McKissick, Jay Chaudhuri and Joel Ford walked out in protest. The remaining Republicans then continued their assault on the judiciary by introducing a redistricting proposal that wasn’t on the agenda. That’ll teach ’em.

If Don Stephens personifies a three decades-long commitment to rigor, fairness and the independent embrace of the rule of law, Sen. Dan Bishop is burdened by no such nonsense. He is, you will recall, the principal proponent of the incompetently drafted and constitutionally-violative HB2. He recently referred to Raleigh reporters as the “jihad media” and, after the deadly Charlottesville white supremacist rally, he equated the Black Lives Matter movement with the Klansmen. Small wonder that he chairs a crucial General Assembly committee titled “justice.” The “rule of law” is so yesterday in the new North Carolina. Abuse of power is now our constant calling card. A seething, mindless arrogance is its steady and defining companion.

A commonwealth is wounded when a figure like Donald Stephens can be cast aside with the flip of a switch by someone like Dan Bishop. The moral universe shifts on its axis. And we descend.

After the shunning, Judge Stephens released a transcript of what he would have said. It included:

“I believe in a fiercely independent judiciary. A judiciary elected by the people. A judiciary that has no constituency except its duty to the constitution of this state and to the Constitution of the United States, and to the laws enacted in conformity with those mandates. North Carolina is entitled to have judges who make decisions without regard to partisan politics or any improper pressure or influence. That is how the judicial branch of government should work.”

No wonder Bishop shut him up.

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

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