In this issue we want to make it clear that the North Carolina Supreme Court does not play politics. Not now, not ever. That august body rules with dispassionate objectivity in judgment of issues that try the souls of Tar Heels.
For example, a matter that burned in the heart of every Carolina resident, from cotton farmer to CEO, was “how old should our appellate justices be before we require them to retire?” Many have spent sleepless nights mulling this over in their minds. Fortunately, the legislature rode to the rescue recently, extending the age. “Seventy-two is the new 55,” they decreed. “Seventy-six is much closer to old.” And so it was done.
Some cynics may have noted that before the change, Chief Justice Paul Newby would have been required to retire in 2027, and thus unable to complete his eight-year term. There is no reason – NO REASON WHATSOEVER – to think that a supermajority Republican legislature would stack the deck to favor a Republican in the driver’s seat at the Supreme Court. No one is seriously suggesting that. Certainly not Senate leader Phil Berger, who wouldn’t consider manipulating term limits to suit political interests. Neither would his son – Supreme Court Justice Phil Berger, Jr. – get on board with such a blatantly partisan scheme.
In a similar vein, when Supreme Court Justice Anita Earls accused five Republican (of seven) Justices of voting as a bloc, she rightly deserved to be assailed by several (five) of her bench-mates, who accused her of various kinds of misconduct, including Acts Unbecoming a Person Who Doesn’t Know Her Place.
It’s a free speech issue. First Amendment protections regarding speech originally applied to the people identified as being Whole Proper Persons when the amendment was ratified (1791), whom, at the time, were white males. From an “Originalist” perspective, that is as it should be. Just ask anyone. Ask Clarence Thomas. Earls is correctly under investigation by the Ethics Board as a result of her outrageous statements, and when she appealed for an injunction (citing the First Amendment), Federal District Court Judge William Osteen said “uh-uh, no, not on my watch,” or words to that effect.[1]
Most of this is old news, but it is important to clarify that never at any time in the current administration has the North Carolina Supreme Court bowed (or curtsied) to political pressure, or pursued a naked political agenda. This is unlike their predecessors. The previous Court (majority Democrat) went so hog wild so as to declare Republican-drawn voting districts illegally discriminatory. Fortunately, the good people of North Carolina – voting in those same carefully crafted districts – got rid of that bunch of liberal bullies in favor of the group we have today. The current set of justices (by a vote of? Yep, five/two. Glad you’re paying attention) overturned the ridiculous rule that partisan gerrymandering is illegal. Then, by the same margin, they threw in voter ID for good measure.
More recently, the Chief Justice played a quiet game of Parcheesi while the rest of you were off admiring the flaming shitshow that is the Carolina Panthers. To understand his moves, you have to track back to 2020.[2]
In 2020, District Court Judge Beth Freshwater Smith opposed Court of Appeals Chief Judge Donna Stroud in the primary race for the Court of Appeals. Stroud ultimately prevailed, despite support for Freshwater Smith from the Burgers – senior and junior. One can only speculate as to how a person like Stroud rose to such a position of prominence – and seniority on the Appellate Court bench – with (at best) lukewarm encouragement from higher-ups in her own party. Certainly it has nothing to do with skill and competence, given that such traits are rarely a factor in determining the value of a Republican candidate.
By May of 2022, Justice Berger Jr. was actively opposing Stroud. According to the notoriously left-leaning Business North Carolina, “Berger made it clear in a leaked Facebook message that his opposition to Stroud is less about her judicial record and more about a hiring decision he disagreed with.”[3] The hiring decision in question was the appointment of Gene Soar as the Appeals Court’s clerk. Berger reasonably took offense at Soar’s choice, inasmuch as Soar was supported by Democrats on the court – despite being highly qualified. Burger was understandably grumpy that they didn’t anoint his own barely qualified former law clerk, also in the running for the gig. Note that all this comes back to Stroud, who obviously manipulated others on the Appellate Court to hire Soar, since the decision was not hers alone – it was the consensus of 10 Republicans and 5 Democrats.
Stay with me here. This is where it gets good. Last week, Justice Newby quietly appointed Appeals Court Judge Jeffrey Carter to replace another junior Appeals Court Judge – Chris Dillon – as Chair of the Judicial Standards Commission. Dillon, in turn, was elevated to the post of Chief Justice for the Court of Appeals. Justice Stroud was demoted from the post.
“Oh, well,” you say. “I’m sure that sort of thing happens all the time.”
Never. That’s how often. Never has the Chief Justice of the North Carolina Supreme Court – or anybody else, not that anybody could – effectively demoted the Chief Appellate Justice from that role. This is what you have to admire about Republicans – they think outside the box.
Oh, and Freshwater Smith? A few days ago, Newby presided at her swearing-in as a “special Superior Court Judge.” Like many of her fellows in the NC Judiciary, she has learned the value of partisanship and fealty. According to a letter written by former Chief Supreme Court Justice Mark Martin and three former Appellate Court Justices – presumably RINOs themselves – ““[Freshwater Smith] calls herself a ‘True Conservative’ but was a registered Democrat for most of her life. She became a ‘RINO’ at exactly the moment it was politically convenient to get elected as a District Court judge.”[4]
Ha! The Burgers know better – there is no stauncher Republican than a freshly-minted one.
[1] On the recommendation of North Carolina U.S. Senator Elizabeth Dole, Osteen was nominated to the United States District Court for the Middle District of North Carolina by President George W. Bush on January 9, 2007, to a seat vacated by William Osteen, Sr. , just FYI. https://ballotpedia.org/William_Osteen
[2] https://www.wral.com/story/editorial-newby-transforms-n-c-courts-to-playground-to-settle-petty-political-feuds/21221889/ fbclid=IwAR1d7En7rkeolbj4aMvLAWKnd9k_GH1p_wIiiUivBWrkJhXgJaQVw_oSuL0
[3] https://businessnc.com/supreme-court-justice-cites-hire-as-reason-to-oust-chief-judge/
We’ve lived here for so many years but this is the first time I’ve ever gotten a feel for the dynamics and inner workings of the NC judicial machinery and machinations. Thank You Tom!