Supreme Court candidates tout nonpartisanship as deeply partisan election looms

The four candidates running for two open seats on the North Carolina Supreme Court all gave different versions of the same message at a forum Wednesday night: Despite running as Republicans or Democrats in the election concluding on Nov. 8, it is important that a sitting Supreme Court justice not be thought of as a politician in a robe.

“I’m a person, not a partisan,” said Lucy Inman, a judge on the state’s Court of Appeals and the Democratic candidate for the seat left vacant by Justice Robin Hudson’s retirement.

“I think there’s a lot of politics that are at the court,” said Richard Dietz, also a judge on the court of Appeals and Inman’s Republican opponent. “There’s also a lot that the public sees and believes that the court is being political, and we need to fix that.”

Inman and Dietz were joined by Republican Trey Allen and his opponent, incumbent Democrat Sam J Ervin, IV. The four candidates participated in a “nonpartisan candidates forum” hosted by Duke University School of Law and moderated by professor Marin K. Levy. Each candidate answered the same questions. They all steered clear of taking any political stances, sometimes repeating the same points so often that Inman and Ervin called themselves a “broken record.”

But if every candidate is stressing the same things — nonpartisanship, objectivity, adherence to precedent — how else are voters supposed to decide how to cast their ballot? Each candidate danced an awkward number Wednesday night, clinging to judicial objectivity, while also trying to distinguish themselves from their opponent.

Inman laid out the recent history of partisan judicial elections in one of her answers. Voters sent her to the Court of Appeals in a 2014 nonpartisan election, when “candidates didn’t have a partisan label by their names.” In 2015, the GOP-controlled legislature made candidates in Court of Appeals races list their party affiliation. In the 2018 election, district, superior and appellate court races were all partisan, thanks to changes made by the legislature in years prior.

“When you put a partisan label on a judicial candidate, it creates a hope — perhaps, of people who share that that judges party — or a fear — from people who aren’t in that judges party — that the judge is going to be toeing a partisan line,” Inman said.

Some of the candidates’ answers were framed in a way that seemed intended to distance them from the letter next to their name on the ballot.

“If I’m elected, I’ll go to every case with an open mind,” Allen said. “I’ll decide it based on the facts and on the law. You’ll get my honest opinion of what the law is in every case. I will leave my politics at the door.”

Ervin, the only candidate who knows firsthand what it’s like to be on the state Supreme Court (though Allen has secondhand experience; he clerked for Chief Justice Paul Newby when he was an associate justice on the court), said justices must answer two questions in every case: What are the facts? And what is the relevant law?

“Our job is to figure out specifically, what is the law that applies to the set of circumstances that we’ve got before us, construe it as best we can, and make sure that we apply that law to the facts, giving everybody a fair opportunity to be heard, treating everybody equally under the law and making an appropriate decision based on those criteria,” he said.

Judicial philosophy

Allen made an important addition: The Supreme Court’s job is also to assess whether the lower courts got their rulings right.

“It’s vital that justices understand that when they write an opinion on a matter, that may be the only appellate law in that area for for decades,” he said. “Because the lower courts are bound by decisions of the state Supreme Court, it’s vitally important that the court understand that that is decisions might stand for for decades, and they need to be right, because they’re going to constrain the lower courts until the Supreme Court says otherwise.”

And therein lie some of the stakes for voters as the court could potentially shift from a Democratic to a Republican majority, shifting the balance of power and and potentially altering the outcomes of cases on topics like reproductive and voting rights and redistricting, among other high-profile, politicized topics.

Allen pointed to those tight, 4-3, party-line decisions on highly publicized topics as more to blame than partisan elections for the widespread public perception that the court is a political institution.

“The inevitable result is people are going to look at the court and say, ‘Well, they’re making decisions based on their political background,'” he said. “My guess is that those kinds of decisions, that increasing track record of 4-3 decisions, contributes more to people seeing the court as political than the mere fact that there are partisan labels on the ballot.”

Allen said he encouraged voters to look beyond his party affiliation and instead to his judicial philosophy, and whether that school of thought allows him to make decisions based on principle, not politics.

Each candidate gave broad overviews of their judicial philosophy, giving perhaps the most meaningful peek into how they would make decisions from the bench. Dietz underscored the importance of “judicial restraint,” which he defined as not being overly aggressive because if the public loses confidence in the Supreme Court, it no longer has its power.

“We depend entirely on the public trusting that we’re independent, and that we’re not acting as a political body,” Dietz said.

Inman, meanwhile, agreed that “We the People” — in other words, popular sovereignty — is important, but said, “Some rights are so fundamental, they are to be protected. Even when the vast majority of ‘We the people might like to take them away.’ Even when the vast majority of ‘We the people’ might like the court to just exercise some restraint and not meddle.”

Allen spoke highly of “originalism,” the controversial idea that the constitution should be interpreted based on the understanding of it at the time it was adopted. That’s a little complicated in North Carolina, Allen said, since the state has adopted three constitutions: in 1776, after the Civil War in 1868, and in 1971.

Allen said that originalism acts as a boundary for judges, reminding them they are “bound by the constitution just like everybody else.”

Supreme Court justices should start their reasoning based on the history and the constitutional text, Allen said, and they should follow precedent, “except where there’s good reason not to.” He didn’t delve into what circumstances would warrant not following case precedent, except to say justices should do except where there’s a “compelling reason” not to.

Ervin sidestepped whether he favored originalism or “living constitutionalism,” the idea that a constitution’s meaning evolves based on changing societal values and circumstances.

“I’ve always felt like this ‘originalism-living constitution’ discussion involves a false dichotomy,” he said. “Those are two academic theories. We have laws in this state that say how the constitution is supposed to be interpreted, and those are the rules that I follow.”

Those rules, he explained, include following the clear and unambiguous language in the text, and if the language is ambiguous, considering the context of the provision in question, its historical background, and any existing precedent.

“You’re not supposed to follow any type of academic theory, you’re supposed to do what the law requires,” Ervin said. “And so I don’t buy either of those two theories. The theory I buy is the more practical analysis that our case law calls for. And that’s what I’ve tried to do when I’ve interpreted the constitution.”

A different kind of question

Toward the end of the night, Levy asked each candidate for an instance in which they experienced an injustice in their personal or professional lives and how they responded. It might have been the only question that knocked the candidates off their toes, forcing them to dig deeper than platitudes and to recall something from their own lives.

Dietz went first. He didn’t offer a personal experience, but his response seemed to acknowledge that perhaps the state constitution could be updated in an attempt to make North Carolina a more equitable home for all. There are many provisions in North Carolina’s constitution that are meaningless, Dietz said, because the federal courts have said they “don’t mean anything. And I think we the people should get together and remove them.”

Dietz specifically called out the literacy test for voting that still remains in the constitution. A new North Carolina constitution took effect in 1971, featuring a slew of amendments that were ratified by citizens living in the state. Notably, the people did not approve an amendment passed by the General Assembly that would have repealed the literacy test, despite that it could not be enforced because of the Voting Rights Act of 1965. Those tests were used in North Carolina and across the South to prevent African Americans from registering to vote.

The North Carolina constitution is a “wonderful constitution with so many special rights.” But having literacy tests listed among those rights diminishes that wonder, Dietz said.

“I think when people look at the state constitution, we want to be proud to see those rights that are in there,” Dietz said. “I’d like to see we the people get together and delete some of that stuff.”

To watch the forum, click this link. Here is a link to a NC Policy Watch conversation with Inman and Dietz, and here is our discussion with Ervin. (Allen did not respond to Policy Watch’s interview requests.)