The continued efforts by liberals and Democrats to intimidate and politicize the courts has reached a new low. In an unprecedented move, the NAACP is seeking to force the recusal of two North Carolina Supreme Court justices from a case concerning the state's voter ID law. The Carolina Journal explains:
The NAACP seeks to formally remove two GOP Supreme Court justices from a critical constitutional amendments case. Its attorneys presented a detailed argument to the Supreme Court on why the court as a whole should disqualify the two justices, an action never before taken in North Carolina, because of alleged conflicts of interest.
The article continues:
The NAACP seeks to force Justice Phil Berger Jr. off this and other cases because his father leads one chamber of the General Assembly, and Justice Tamara Barringer because she previously served in the legislature.
In a paragraph dripping with irony, NAACP attorneys blame the increasing partisan nature and expense of judicial campaigns for the urgent need for the court to take the most partisan action in the history of the court. If the Supreme Court grants the NAACP’s wish, Democrat justices on the court would be allowed to forcibly remove the Republican justices while allowing liberal Democrat Anita Earls to remain in place. That would be despite Earls’ well-documented conflicts, including previously having been an attorney for the NAACP and helping the organization raise money after the amendments case already had produced a ruling in a lower court.
Allowing such a policy would fundamentally transform the North Carolina Supreme Court. A brief written by attorneys for proposed intervenor defendants-legislators argues that the partisan practice would likely become a commonplace occurrence:
While forcing a Justice’s involuntary recusal may today seem an extraordinary step, the first use of such a power will transform the way it is viewed—lending familiarity to a raw exercise of power that had previously been unthinkable and creating a natural desire for retribution on the part of those Justices who opposed the act. Further uses of this power would engender further efforts at retaliation and escalation.
The incentives of litigants before the Court would only intensify this escalation. In a politically charged case (such as this one), a party who believes the Court is closely divided on the issue in question would have every reason to attempt to tilt the scales in its favor by strategically moving to recuse one or more Justices it believes are unfavorably inclined to its position—Justices who then would be barred from voting on whether they can participate in the case. The number of recusal motions would thus itself be likely to skyrocket, leading to a vicious cycle of increasingly baseless accusations of bias and increasingly acrimonious forced recusals. As Justice Scalia noted in the context of the U.S. Supreme Court, “[w]hile the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this Court cannot.” Cheney v. U.S. Dist. Ct. for D.C., 541 U.S. 913, 928 (2004) (Memorandum of Scalia, J.).
Indeed, the greatest loser in such a world would be the Court as an institution—and, ultimately, the People of North Carolina who rely upon it to dispense justice fairly, with integrity, and in a neutral and professional manner. While those who advocate for reforms allowing involuntary recusal often claim that it is necessary to ensure judicial integrity, the deep irony is that such a procedure is in fact deeply damaging to that very goal.
The courts themselves are resisting attempts to be partisan. On Wednesday, the U.S. Supreme Court agreed to hear the GOP legislators' request to intervene in the case.
NEW: Scotus agrees to hear bid from NC GOP legislators to intervene to defend the state’s voter-ID law from lawsuits, because they don't think Democratic AG adequate https://t.co/M0wkoCYLPB— Robert Barnes (@scotusreporter) November 24, 2021
In an op-ed for the Charlotte Observer, President of the John Locke Foundation Donald Bryson echoed the concerns of the legislators:
Such a move would amount to a bloodless coup of state government. The forced recusal of two justices on flimsy partisan arguments would be unprecedented. It would allow a partisan majority to rule as they please and create an anti-democratic precedent for removing inconvenient judges at any level of the state’s judicial system.
In our politically charged environment, it is easy to become tribal and distrustful of others based on their party affiliation. The precedent that would be set through a forced recusal would allow whichever party held the court majority to usurp law as it pleased and perform a judicial coup of government at a whim. Citizens will question the court’s legitimacy altogether and spin North Carolina into a constitutional crisis.
Much like their partisan court packing efforts, the Democrat and liberal effort to politicize and intimidate the North Carolina Supreme Court should be seen for what it is: an effort to obtain partisan advantage through the courts. All who respect the rule of law should oppose such proposals.