Keep Politics off the Bench? Tell the Judges | Eastern North Carolina Now

    Publisher's note: The author of this post is Mitch Kokai, who is senior political analyst for the Carolina Journal, John Hood Publisher.

    Call it a case of a good headline for the wrong column.

    A recent issue of Raleigh's News & Observer featured an opinion-page piece titled "Keep politics off the bench." It started with one of the silliest declarations one could find in an op-ed attempting to make a serious argument: "Despite bipartisan opposition, the General Assembly cleared House Bill 100."

    Wait a minute. If the bill faced opposition from both parties, how did it "clear" the General Assembly? Because the facts did not fit the argument the author wanted to make.

    Yes, six Republicans in the N.C. House and one GOP senator voted against the bill. They were outvoted, 64-6 and 32-1, in their respective caucuses. Most opposition to the bill came from Democrats, making this much more of a partisan split than a case of "bipartisan opposition."

    (By the op-ed writer's logic, Democratic Rep. William Brisson's vote in favor of the original bill, and his colleague Rep. Billy Richardson's "yes" vote on the final version, gave the measure bipartisan support.)

    What followed the column's ill-advised opening sentence was an argument opposing House Bill 100, which would restore party labels for state District and Superior Court elections. The column also endorsed the return to taxpayer financing of judicial election campaigns.

    The latter point ignores the clear constitutional problems linked to taxpayer-financed elections. Meanwhile, opposition to party labels for judicial elections ignores what John Locke Foundation Chairman John Hood has described as the "unworkable mess" of nonpartisan races.

    But all is not lost. The "Keep politics off the bench" headline still has a valid application.

    The need to keep politics out of judicial proceedings became clear during a hearing last week involving the ongoing power struggle between Democratic Gov. Roy Cooper and the Republican-led General Assembly.

    Lawyers offered a three-judge panel both constitutional arguments and legal precedents explaining why either the governor or the legislature should prevail.

    Cooper's team cited Article I, Section 6, the state constitution's Declaration of Rights, which sets out that state government's executive, legislative, and judicial powers "shall be forever separate and distinct." Cooper's attorneys also relied heavily on the 2016 McCrory v. Berger case, which delivered Cooper's Republican predecessor a victory over lawmakers in an earlier tug of war involving the separation of powers.

    For their part, the General Assembly's lawyers cited longstanding court precedents and multiple sections of the constitution - including Article III's rules for appointments and administrative reorganization - to explain why recent laws to rein in the governor's powers fit squarely within the legislative branch's prerogative.

    The judges could have probed these contrasting constitutional interpretations. They could have asked why one constitutional provision would trump another when the two provisions generate inconsistencies. They could have asked how previous N.C. Supreme Court rulings have helped settle these matters.

    Instead the judges' questions focused more on political issues.

    They peppered the legislature's attorneys with queries about the timing of new laws that sparked the current court fight. "The court always has the power, when we're talking about constitutional issues - in this case, separation of powers - to look behind the intent, to see if it is a pretext," said Judge Jesse Caldwell, a Gaston County-based Superior Court judge.

    Caldwell specifically asked why lawmakers approved the disputed laws in a special December session. "It could have been done 10 years ago," he said. "It could have been done during Gov. [Pat] McCrory's administration. It's done two weeks before the new governor. You tell me that's not a pretext?"

    In addressing a dispute over state Senate confirmation of the governor's Cabinet appointments, Judge Todd Burke of Forsyth County labeled the General Assembly's "political grab of power" as an "elephant in the room." "If you look at this law, why do you think it does not violate the separation of powers when historically the governor has had unfettered appointment authority?"

    When the judges were not focusing on legislators' intent, they tackled another political, rather than judicial, question: How well will the disputed legislative changes work? Caldwell, in particular, latched onto the notion that the merger of state elections and ethics boards would create new conflict-of-interest problems.

    The legislature's attorney responded. "It's not enough to think that there may be a problem here or that this legislation may be unwise," said Noah Huffstetler. "It's not possible to set it aside based on what might happen in the future. You have to be convinced beyond a reasonable doubt that this legislation is unconstitutional in order to have the result that the plaintiff [Cooper] wants here."

    In other words, keep politics off the bench. That sounds like a good headline.