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Op-ed in NC Policy Watch by Melissa Price Kromm

In the past few months, North Carolinians have seen our General Assembly make national news several times. At least a couple of those times were due to the continuing and shameless partisan assaults on the independence of our courts.

A recent report ^[2] from the nonpartisan Brennan Center for Justice ^[3], a leading national legal think tank, revealed that North Carolina is leading the country in what has become a nationwide attempt to dismantle the last line of defense against state lawmakers’ often unconstitutional and unconscionable laws.

With no one to stop them, North Carolina’s legislative leadership had already made the state Supreme Court and Court of Appeals races into partisan affairs, politicizing the highest courts and increasing partisanship where we interpret our laws. But as the Brennan Center reported ^[4], in recent months, lawmakers have taken their attacks on the judiciary to a whole new level, proposing bills that would snatch appointment powers for the judges who control the fate of their unpopular bills, change the size of the courts to upend majorities counter to their interests, and more.

The Brennan Center’s report found North Carolina isn’t the only state that is forcing judges to focus on politics rather than upholding the law. The report ^[4] documents how, “across the country, a wave of bills this year has sought to limit courts’ power to politically manipulate the judiciary in troubling ways.” It catalogs a troubling 40 bills across 15 states that target the courts. These attacks are wide ranging, from changing the way judges are selected to giving legislatures the ability to override checks and balances—a constitutionally dubious proposition.

As the report notes (and North Carolinians will find all too familiar):

“This year, at least 41 bills in 15 states have targeted state courts, including efforts to control the ways by which judges reach the bench, to unseat judges currently on courts, and generally to restrict courts’ jurisdiction and power….Many bills reflect apparent attempts to increase political influence over the courts, entrench partisan interests, or to respond to unpopular judicial rulings.”

But even though North Carolina is far from alone, as the report ^[4] points out, the Republican-led General Assembly’s assaults here on all levels of judicial independence are “particularly noteworthy.” They are directed at weakening a new Democratic governor’s power over judicial selection, entrenching Republican control in the lower courts, and “normalizing political interference in the rules governing how judges are chosen and how courts are structured.”

While most states began their judicial assaults this year, North Carolina got a head-start with the specter of Supreme Court packing ^[5] during a December special session — ostensibly called for disaster relief — and hasn’t stopped since. This year, the General Assembly has continued the effort by ”unpacking” the Court of Appeals from 15 to 12 members in order to cram the N.C. Supreme Court with a steep new caseload ^[6] and potentially justify partisan court-packing down the road.

North Carolina’s is now a far cry from a fair, independent, and impartial judiciary. And the stakes are clear. As the Brennan Center points out, ^[4] these bills are “raising concerns that it will become increasingly difficult for judges to put aside partisan and ideological preferences when deciding cases” — hurting North Carolina and over a dozen other states in the process.

Fortunately, some judges are fighting back.

Before a Republican supermajority could override Gov. Cooper’s veto of their plan to rig the North Carolina Court of Appeals, a Republican Appeals Court Judge Douglas McCullough stepped down so that Cooper could appoint his replacement. “I did not want my legacy to be the elimination of a seat and the impairment of a court that I have served on ^[7],” he said of the decision.

Of course, it will take a lot more than a courageous judge or two stop the partisan onslaught.

At the same time that numerous bills targeting our judiciary are being advanced, almost as many proposals – many of them bipartisan – to enact redistricting reform and fairer voting maps are being ignored by legislative leaders. Meanwhile, the bills that did get a vote attacked our state’s very election processes and separation of powers, and were only held at bay by the very courts now under attack.

For a long time, North Carolinians and Americans in states across the country have taken for granted the independence and commitment to fair decision-making at the heart of the judicial branch. Unfortunately, a growing and dangerous national trend threatens this reality and North Carolina is at the center of it.

It’s past time for all North Carolinians to stand up and tell state lawmakers to halt their partisan and self-serving tampering with the courts and focus instead on serving all North Carolina residents.

Melissa Price Kromm is the Director of the North Carolina Voters for Clean Elections