Mike Morgan, an African-American judge, defeated a conservative incumbent last month for a seat on the North Carolina Supreme Court. Now conservative Republicans are trying to sabotage his election by packing the court, a move that would have racial and perhaps national political implications.
Although the court is officially nonpartisan, Morgan’s surprise win means that four of the seven justices will be Democrats. The overwhelmingly Republican legislature and a lame-duck Republican governor who conceded defeat this week will go into a special session next week, ostensibly to provide relief for hurricane victims. What they really want to do is quickly appoint and confirm two more justices to a court that has had seven members for 80 years.
This really would be rigging the system, the sort of thing President-elect Donald Trump might rail against. Except the victims would be African-Americans and Democrats.
If North Carolina Republicans go through with their plan, it will recall President Franklin D. Roosevelt’s disastrous effort to pack the U.S. Supreme Court in 1937. In North Carolina today, Republicans have the votes in the legislature and an accommodating outgoing governor, so all that can stop them is fear of a public backlash.
“This would be a highly politicized move and do great damage to the court,” charges Anita Earls, the executive director of the the Southern Coalition for Social Justice.
This also is a case of an incumbent protection racket. The justice whom Morgan defeated had upheld a redistricting plan of the state legislature and congressional delegation that was thrown out by federal courts on the grounds it was intended to hurt blacks. Unless the U.S. Supreme Court intervenes, the legislature will have to draft a new redistricting plan and hold elections for about half of the House or Senate next year. One of the first avenues of any challenge would be the state Supreme Court.
Any attempt to dilute the effect of Morgan’s election might intensify racial tensions in the state. From the 1950s to several years ago, North Carolina probably has had less racial conflict than any Southern state. But after taking control of state government four years ago, Republicans imposed voting restrictions as well as racial gerrymandering — some of which was overturned —and inflamed racial attitudes.
Earlier, these conservatives tried to block the state Supreme Court election, saying that a sitting judge only would be subject to a retention vote. That, too, was thrown out by the courts.
State law requires a special legislative session only when needed to deal with critical budget matters. But once a session is convened, legislators can take up anything, including court-packing.
Time is at a premium. A month from Wednesday, Attorney General Roy Cooper, a Democrat, becomes governor. The Republican legislators won’t want a court packed with his appointees.