In anticipation of a reopening on June 1, the North Carolina courts have asked attorneys to mail in their filings well in advance of that deadline. The court system expects a massive crunch in paperwork once it resumes full operations. Due to the coronavirus pandemic, filings are down 54% for the year, and case dispositions are down 65%.
A seat on the U.S. District Court for the Eastern District of North Carolina, which has been vacant for nearly fourteen years, may finally be filled after President Trump nominated UNC law professor Richard E. Myers II for the position on Wednesday.
The vacancy, which has been in place since the end of 2005, is a testament to the dereliction of constitutional duties by both the executive and legislative branches. George W. Bush originally nominated attorney Thomas Farr to the seat, but Senate Democrats twice blocked the nomination. President Obama then offered two different nominees for the same seat during his eight years in office, only to have both nominations blocked by home-state Republicans. President Trump renominated Farr to the seat in 2017, but no vote ever came to the Senate floor.
Partisans will surely argue that each of the opposing party’s nominees was unacceptable, and that North Carolinians are better off with no judge than with a bad one. But tell that to the people who have had to wait longer for their cases to resolve.
Good luck to Professor Myers, who deserves better treatment than previous nominees and at least a speedy and fair up-or-down vote.
When I started following North Carolina’s judicial election process a decade ago, it was a model for fair practices in directly electing the judiciary. Candidates ran in nonpartisan, publicly funded elections, and much of the chicanery that affects judicial elections in other states (like attack ads, targeted campaigns, and the like) was largely absent.
But sadly, the last couple of years has seen the North Carolina process turn into a clown show, as as aggressive state legislature tussles with the governor politicize the judiciary. Elections are once again partisan, and filling vacancies is ugly and political. And there is no sign of it ending anytime soon.
To wit: this week the state legislature passed a new law that appears to target a single candidate for the state supreme court. Chris Anglin is one of three candidates for an open seat on the court this fall. Anglin was registered as a Democrat until June, when he changed his party affiliation to Republican. The switch meant that two candidates would be identified as Republicans, and one as a Democrat, on the ballot.
Republican legislators, apparently concerned that the presence of two Republicans on the ballot would split the partisan vote and throw the election to the lone Democrat, hurriedly passed a bill that would remove any party designation for a candidate who switched parties less than 90 days before the election. As a result, Anglin would remain on the ballot, but without a party designation.
Republicans have couched the bill as a fair compromise to prevent the gaming of the election system. Democrats and Anglin are both crying foul. The question now is whether Governor Roy Cooper, a Democrat, will veto the bill.
Republicans in North Carolina and Pennsylvania have been rightly criticized for attempting to politicize their state courts through ill-advised, partisan legislation. But the Democrats are hardly saints in this area. With today’s judicial election in Wisconsin, several media outlets have pointed out the rampant politicization of the entire election process, which includes endorsements of the “more liberal” supreme court candidate by Joe Biden and Eric Holder. And the Daily Beast has a piece entitled National Democrats Want to Make Judicial Elections the Next Crest in the Blue Wave, which quotes Faiz Shankar, national political director for the ACLU:
“Increasingly, I think, us along with a lot of progressive actors have really felt that elections pose one of the most powerful ways to change policy…. In a large race…there are so many issues at play and it’s unlikely that you could just make criminal justice the sole major issue at play. Whereas in some of these smaller races, and ones that have less turnout, you can really make it a threshold question.”
Back in 2011, I studied the Wisconsin Supreme Court election, and concluded in a subsequent article that even in that ugly, politicized race, voters showed that they were mostly concerned about a candidate’s capacity for neutrality and procedural fairness, not partisan ends. I hope that Wisconsin judicial voters continue to rise above the partisan politics that the national parties are flinging their way.
In July, the White House nominated Thomas Farr for a vacant judgeship in the Eastern District of North Carolina. But this was not just any vacant judgeship — the position has sat empty for twelve years as a result of extreme partisan gamesmanship in the Senate. Farr was approved by the Senate Judiciary Committee in October, but the full Senate never voted on his nomination. Because no action was taken by year-end, the nomination was returned to the White House.
The President can renominate Farr after the first of the year, and probably will despite Democratic concerns about Farr’s alleged role on voter suppression tactics in the 1990s. If renominated, Farr would face a slightly different Judiciary Committee for a second hearing, with Al Franken gone and replaced, perhaps, by Cory Booker or Kamala Harris.
Whatever transpires with Farr’s nomination, both the Senate and the White House owe it to the people of North Carolina to finally fill this seat. The dozen-year vacancy is both embarrassing and detrimental to the work of the courts.
I have tracked the ongoing legislative battle in North Carolina over the selection of state judges. The judges themselves are caught in the middle, unable to comment in any direct or meaningful way. This article nicely demonstrates how sitting judges in the state are navigating the treacherous political waters.
Note that judges can — and sometimes do — comment on legislative issues that affect them. But most of the time that commentary goes to judicial salaries and resources, or other relatively apolitical issues affecting the judiciary as a whole. This selection debate is a political morass, and the judges are wise to stay out if they can.
It has been a while since I wrote about the political wrangling between North Carolina Governor Roy Cooper and the state legislature over the selection of state judges. But a lot has been going on.
Some background: North Carolina primarily elects its judges, with the governor filling vacancies on an interim basis as they occur. But there seems to be a general consensus that the current process is not functioning well. Contested (now partisan) elections, political gamesmanship with respect to filling judicial vacancies, and outworn judicial districts all have contributed to the malaise. The issue has become a flashpoint in recent months, in part because of a widely publicized tug-of-war between the state’s courts and its Republican legislature. The court system has struck down many significant pieces of legislation in recent months, leading to loud complaints from legislators.
In the last several weeks, under the guise of judicial reform, the state legislature has passed two bills that would radically remake the state’s judicial selection process–and with it, the state’s judiciary.
Since 2005, the United States District Court for the Eastern District of North Carolina has had an open seat, the product of partisan bickering in the Senate. George W. Bush nominated attorney Thomas Farr for the seat in 2006, but Senate Democrats failed to process the nomination. Barack Obama subsequently nominated two different women to the seat during his presidency, but both nominations were blocked by Senate Republicans. Now Donald Trump has come full circle, re-nominating Farr for the same seat. And despite deep opposition by Democrats, Farr’s nomination advanced out of the Senate Judiciary Committee yesterday on a straight party-line vote.
It’s unclear who benefits from this partisan rancor, but it is very clear who loses: the courts and the public. For a dozen years since Judge John Malcolm took senior status, the Eastern District has been down an active district judge. Given that the district is only authorized to have four active judges, the court has been operating at only three-quarters capacity for more than a decade — and through no fault of its own.
I have no opinion on whether Mr. Farr is the right man for the job. But the public should reject as outlandish that the seat was not filled by someone long ago.
President Trump nominated eleven people to federal district judgeships yesterday, covering districts in Alabama, Georgia, North Carolina, Oklahoma, and Tennessee. Once again, I am struck by the nominees’ breadth of experience. The group of eleven includes five attorneys in private practice, three state court judges, one United States Magistrate Judge, one law professor, and one state legislator. Several of the nominees have practice experience in both the government and the private sector.
As a general matter, I have been very impressed with the quality of judicial nominees coming from the administration. Hopefully Congress will hold swift confirmation hearings on the nominees and begin to cure the severe vacancy crisis in our federal district courts.
Two very different programs with the same goal of keeping people out of court were announced in North Carolina this week.
Durham County has one of the state’s highest levels of eviction filings, with approximately 900 cases filed each month. Eviction cases are stressful for tenants and costly for landlords. A new program co-sponsored by Legal Aid of North Carolina, Duke University’s Civil Justice Clinic, and the Durham County Department of Social Services is aiming to reduce eviction filings by guiding affected tenants to legal and financial assistance programs. The hope is that tenants will be able to remain in their homes, landlords will be paid the rent owed, and the courts will not be clogged with cases that might well be amenable to extrajudicial resolution.
In Buncombe County, local prosecutors have developed their own program to reduce the need for drivers to come to court to challenge or pay speeding tickets. Drivers caught going 15 miles or less over the speed limit would have the option of paying their fine or even negotiating for reduced points online. The district attorney behind the program estimated that 2000 people per day crowd the courthouse to appear before a magistrate for speeding fines.