Since North Carolina voters elected Democratic governor Roy Cooper in November, the Republican-dominated state legislature has been on a mission to take away the governor’s power. The legislature’s latest power grab is a series of bills that limit the power of the new Democratic governor to appoint judges and other officials. The proposed laws could give the legislature the power to pack the state courts, including the newly liberal state supreme court, with its preferred judges.
Because the state’s legislature includes a Republican super-majority that could override the governor’s veto, the state courts could provide a crucial check on any unconstitutional legislation. Courts have recently struck down bills that discriminated against black voters, and lawsuits have been filed against HB2, which limits the rights of LGBTQ citizens.
The legislature is considering a bill to transfer the authority to fill vacant trial court seats from the governor to the legislature. Another bill would give the legislature sole power to appoint judges to empty seats on “special” courts, expanding its power far beyond its current role of confirming the governor’s nominees. And yet another bill would reduce the size of the North Carolina Court of Appeals — “unpacking” the court to deny the governor the chance to fill two upcoming vacancies.
North Carolina’s state constitution currently authorizes the governor to fill “all vacancies occurring” in the courts until the next election, but it gives the legislature some authority over the selection of trial court judges. The state’s first constitution in 1776 gave the legislature the power to appoint judges, but the post-Civil War constitution gave that authority to the executive branch.
Only South Carolina and Virginia give their legislatures control over appointing judges, and South Carolina has seen concerns raised about the legislature’s influence over the courts. A conservative think tank said, “What this means, in effect, is that by the time a judicial nominee becomes a judge in South Carolina, he or she is personally and professionally beholden to state lawmakers in unhealthy ways. Can judicial independence really exist in such a system?”
Other bills in consideration are even more concerning because they inject even more partisanship into the judiciary. One bill would literally put political parties in charge of selecting judges and district attorneys to fill vacant seats. The governor would still technically fill the vacancies, but he or she would “appoint from a list of three persons recommended by…the political party with which the vacating [judge] was affiliated when elected…” The legislature also looks poised to bring back partisan elections for the state supreme court and trial courts — having already injected partisanship back into elections for the North Carolina Court of Appeals. North Carolina would become the first state in nearly a century to make the switch from nonpartisan supreme court elections to partisan races, which have historically seen much more campaign cash.
“These partisan power grabs represent an all-out attack on our independent judicial system and the separation of powers,” said Melissa Kromm of North Carolina Voters for Clean Elections. “It’s not about what’s good for North Carolina.”
Several of these bills would certainly be challenged in the courts, and the state supreme court would have the final say on whether these laws violate the state constitution. The court has already halted one recent bill that limited the governor’s appointment authority.
The bills are an effort by the legislature to do whatever it can to nullify the results of the 2016 election and grab power from the other branches of government, where un-gerrymandered voters happened to choose Democrats.
When the legislature considered its first round of legislation curbing the governor’s power in December, one Republican legislator admitted as much: “Some of the stuff we’re doing, obviously if the election results were different, we might not be moving quite as fast on, but a lot of this stuff would have been done anyway.”
Billy Corriher is the Deputy Director of Legal Progress at the Center for American Progress. Legal Progress Special Assistant Raman Kaur contributed to this report.
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