Bench Memos

North Carolina Update

The dust is still settling after Justice Paul Newby’s reelection to the Supreme Court of North Carolina, but another interesting development in the court’s future has emerged with the resignation of Justice Patricia A. Timmons-Goodson.

Justice Timmons-Goodson, probably the most liberal member of the court, has written Governor Bev Perdue to inform her of her decision to retire effective December 17th. Perdue, a Democrat who will soon be succeeded by Republican Pat McCrory, faces a dilemma because the Missouri Plan commission that she established in April 2011 through Executive Order 86, to “take the politics out of nominating judges in North Carolina,” does not have enough time to complete the nomination process before Perdue leaves office.

Under the terms of Executive Order 86, the nomination process is generally expected to take more than 6 weeks; however, there is language in the order that says the Governor may prescribe a shorter period for the process. Nonetheless, Burley Mitchell, former chief justice of the state supreme court and member of the Judicial Nominating Commission, has said the commission is not ready to take up an appointment to the Supreme Court at this stage of Perdue’s administration.

If Perdue does not fill the vacancy in the next several weeks, McCrory will be the one interacting with the nominating commission and ultimately appointing the new justice, assuming he wouldn’t rescind the executive order and abolish the commission altogether. Which means the conservative advantage on the court could increase from 4-3 to 5-2.

Perdue has several options.

Option 1: Ignore or abolish her own executive order, which would put the lie to her boast about taking the politics out of the judiciary. Although a panel of nominees selected by a Missouri plan committee is likely to be weighted toward liberals, with a Republican governor picking among them, there is the chance of moving the court to the right given how liberal retiring Justice Timmons-Goodson is. If Perdue changes her own order to keep maximum control of this key nomination, it will be clear that her only reason to support a nominating committee is the very reason she might now oppose it in the short term: she thinks it is the best method to secure judges she agrees with ideologically.

Option 2: Allow the process to play out as it would under ordinary circumstances, which would put McCrory in the driver’s seat.

Perdue currently plans to follow option 1, and modify her order to get around it.

I would like to believe that Governor Perdue’s evolution on judicial selection reflects a newly found conviction that the governor should be free to pick judges who reflect her judicial philosophy, and not be bound by the nominations of an unaccountable lawyer-dominated commission. Sadly, I think the truth is that she found herself trapped by her own political charade. Whatever the case, let’s hope McCrory is paying attention and refuses to give life to such a stupid plan in the first place.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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