Wednesday, 26 January 2022 11:45

OPINION: NC GOP’s judicial impeachment threats are a new low in Trump-like lawlessness

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Impeachment. Like the snowflakes that flew last week in many parts of North Carolina, that word has been in the air in the state capital of late – darting here and there in wild and erratic patterns and, ultimately, depositing a kind of icy blanket on state government.


A few weeks back, right-wing politicos were rattling the impeachment saber at Superior Court Judge David Lee because they didn’t like his attempts to enforce the state constitution when it came to the right of schoolchildren in poor counties to a sound basic education.

Now, as you’ve probably heard, Republican legislators are — according to former state GOP executive director and current John Locke Foundation employee Dallas Woodhouse — seriously discussing the idea of impeaching Democratic members of the Supreme Court should it strike down the gerrymandered legislative and congressional maps those same lawmakers enacted late last year.

It’s hard to overstate what a treacherous act this would be. Simply put, handing down rulings with which legislators disagree is not an offense of any kind — much less an impeachable one. Indeed, few things are better established in our system of government than the right of the judiciary — and especially the Supreme Court — to determine whether acts of the General Assembly are constitutional. To strike down unconstitutionally gerrymandered electoral maps is not just the Supreme Court’s right, but its duty.

But wait. Amazingly, the potential treachery goes to an even lower place.

According to multiple reports, impeachment is not just under consideration as an option in the event of a court ruling unfavorable to the GOP maps; it’s being discussed as a preemptive tool should Justices Anita Earls and Sam Ervin IV fail to heed GOP demands to recuse themselves from the litigation. And since an 1868 state law indicates that impeached state officials are automatically suspended from their positions pending a trial in the Senate (there is debate over whether this would be enforceable), the mere act of moving to impeach could theoretically remove the two justices from hearing the case and thereby instantly convert a 4-3 Democratic majority on the court to a 3-2 Republican advantage.

Oral arguments in the gerrymandering case are scheduled to commence next Wednesday, Feb. 2. There have been rumblings that House Republicans might try something in the next few days.

In a Jan. 20 column, veteran journalist Ned Barnett of Raleigh’s News & Observer described the impeachment scenario as the GOP’s “nuclear option,” but that seems like too mild of a term. Impeaching Supreme Court justices because of their past work as practicing attorneys or because of the people or groups who supported their election to office, or because they’re up for election this year (which are the effective bases of the recusal motions) wouldn’t just be a dramatic political and legal move. It would be the state-level equivalent of what insurrectionists attempted when they violently invaded the U.S. Capitol on Jan. 6, 2021: a coup d’état designed to overturn a legitimate election (or, in this case, two elections) and fundamentally alter the course of state history.

This is the kind of naked power grab you’d expect from a Vladmir Putin, Xi Jinping or, of course, Donald Trump.

Think about it for a moment.

If Justice Earls must recuse herself under threat of impeachment from redistricting cases because she once worked in the field as a civil rights attorney and was supported by civil rights groups in her campaign for office, where does this end? Should Chief Justice Paul Newby and Justice Phil Berger, Jr. — both former criminal prosecutors — recuse themselves from all cases involving criminal appeals?

Likewise, if Justice Ervin must recuse himself from any decisions that impact the 2022 election because his seat is up this year (it isn’t affected by redistricting), why do state lawmakers, whose races are impacted, not operate under the same limitation?

Of course, all of this is made that much more absurd and outrageous by the fact that both Justices Berger and Tamara Barringer have already refused to recuse themselves from a case challenging the lawfulness of a pair of constitutional amendments the General Assembly approved in 2018 — a case in which Berger’s father is a named defendant and Barringer actually voted for the challenged amendments as a member of the Senate.

That Berger Jr.’s father, Senate President Pro Tem Phil Berger, Sr. has recently published a series of scurrilous public attacks on Justice Earls merely adds another layer of nauseating Trumpian hypocrisy and bullying to the whole affair.

The bottom line: Like a lot of winter weather that’s forecast for North Carolina, last week’s snowstorm ended up being less severe and doing less damage in most places than had been feared. For the good of our state and its democratic institutions, let’s hope fervently something similar occurs with the threatening impeachment storm.

For now though, caring and thinking people should remain prepared and vigilant just in case GOP lawmakers attempt to unloose a dangerous and potentially paralyzing constitutional emergency.

Rob Schofield, director of NC Policy Watch, has three decades of experience as a lawyer, lobbyist, writer and commentator. Republished from NCPolicyWatch.org.