Wow, this past week really flew! And now I’m finally getting around to the post I teased last week, about one of the amendments on the ballot that inspired all living former NC governors and all living former chief justices of the NC Supreme Court to oppose it: the judicial appointments amendment.
First, a quick refresher on separation of powers. We all learned in school about the three branches of government: the legislative, who makes the laws, the executive, which enforces the laws, and the judicial, which interprets. Each branch is meant to act as a check and balance for each of the others so that no one branch becomes too powerful. Perhaps one of the most vivid examples of Federal separation of powers has been on display in the last two months — judicial nomination. The President nominates a judge to fill a vacancy, subject to the advice and consent of the legislature.
Imagine, instead, that the legislature had the power both to nominate and to confirm those judges, with no input from the executive branch. This is what the NCGA is asking us to grant it with the Judicial Nominations Amendment.
The ballot language reads:
Constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making
recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend at least two nominees to the Governor via legislative action
not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.”
Proponents of the Amendment contend that we must restructure our Separation of Powers because it’s that it’s unfair for the governor to be allowed to fill judicial vacancies. They claim that this Amendment will allow “the people” to be involved in the process. But a close look at the language of the Amendment reveals the sham of this claimed “process.” In reality, the Amendment simply takes a power currently held by the Governor and transfers it completely to the NCGA for no reason other than the NCGA wants that power for itself.
Let’s take a look:
Under the Amendment’s appointment scheme, the Governor still, nominally, has the power to appoint justices. However, he or she cannot actually choose any nominee. Instead, he/she is Constitutionally required to appoint a nominee selected by the NCGA. In effect, the Governor’s judgement — for which he/she, was elected by the People to use — has been excised from the process. The NCGA gets sole appointment authority, with a little Gubernatorial window dressing.
The Amendment’s proponents make much of the fact that anyone can nominate a potential judge, but in reality that nomination process is meaningless. For one thing, “the people” appears to include members of the NCGA or their agents, so in effect the NCGA has the power to nominate potential judges to this new Commission.
And about that Commission — The Amendment makes the Commission sound remarkably fancy and inclusive, with members selected by NCGA, the Chief Justice and the Governor, but that Commission may only make a determination of whether a nominee is “qualified.” That term is, of course, left undefined, presumably so that the NCGA can fill in the blank later. The point is, this Commission has no discretionary role; it’s acting only as a limited background check for potential judges.
So here’s how this process can go: A vacancy opens on the Supreme Court. Phil Berger decides that he’d like one of his wealthy donors to hold that seat, so he submits to the Commission a list of folks that he’d like to reward for their loyalty. The Commission uses a metric that has been determined by the NCGA to deem those nominees “qualified,” and good ol’ Phil muscles his subjects in the NCGA into approving them (and we’ve seen ample evidence that this group of legislators does not and will not deny anything Berger wants). The list then goes to Governor Cooper, who literally has no choice but to appoint one of Berger’s buddies to the court.
I feel better about the legitimacy of the Court already, don’t you?
Sarcasm aside, this is the exact process that the NCGA has asked us, the voters, to approve, despite any kind of rational justification for it. And so we are left with the question, “why?” Why is it better for the legislature, rather than the governor, to appoint judges? Why should the legislature get yet more power, in the very same year in which its leadership has openly joked that they didn’t realize the governor had any power left at all? Simply put, this proposed Amendment has absolutely no benefit for the people of North Carolina, but it does have some big downsides.
For example, there is the very real threat that this Amendment, if passed, will allow the General Assembly to overturn to express will of the people and to stack the NC Supreme Court with its own hand-picked candidates. Here’s how:
In the normal course, the members of the NC Supreme Court are elected by popular vote. That Court can have up to 9 members on it (there are currently 7). The NCGA has the power to expand the court by two seats, and if the Amendment passes, it could use that power in combination with their new appointment power to stack the court with judges of their own choosing. And while some Republican legislators have claimed that doing so isn’t their intention, they also expressly rejected pleas to change the language of the proposed Amendment to make such a scenario impossible (by making the Legislative appointment power inapplicable to newly-created seats on the bench).
In short, the Legislature is asking us to give it more power, for no good reason, and is also asking us to trust that they won’t abuse that power, while at the same time rejecting any safeguards that would prevent that abuse. Nothing in the majority’s conduct these past few years justifies our putting any trust in their restraint, so this Amendment must fail.