The Pulse

Veteran NC government watchdog Bob Hall: GOP hypocrisy and the current controversies at the state Supreme Court

By: - January 26, 2022 1:11 pm
Senate leader Phil Berger, Sr.

Justice Phil Berger, Jr.

Chief Justice Paul Newby

Republican legislators have filed a formal motion calling on North Carolina Supreme Court Justice Anita Earls, a Democrat, to recuse herself from the current redistricting litigation. Why? According to the Republicans’ press release, she “faces an insurmountable conflict” because her election was heavily supported by a donor with a partisan interest in the outcome of the redistricting case.

But the refusal of two Republican justices on the court to previously recuse themselves points up the rank hypocrisy of this attack on Earls.  The real reason GOP legislators want her removed is because, as a distinguished Black woman attorney with extensive expertise in racial and partisan gerrymandering, she will likely have an important role in formulating how the court majority rules in this case.

What’s more, two Republican justices have refused recusal in the past in response to similar, if not even more compelling, motions — current Chief Justice, Paul Newby, and Justice Phil Berger, Jr., the son of the leader of the state senate, Phil Berger Sr.

Consider the following:

** Nearly a decade ago, then Associate Justice Paul Newby refused to recuse himself during the legal challenges to the 2011 redistricting maps. The main rationale for requesting his recusal was that a major donor with a partisan interest in the case heavily bankrolled Newby’s election, i.e., a fact similar to the reason given by Republicans for demanding that Justice Earls recuse herself from the current redistricting case.

Briefly, the bulk of the money spent on Justice Newby’s 2012 reelection came from a super PAC whose biggest donor (about $1.2 million) was the National Republican Leadership Committee, the same GOP organization that had paid consultant and conservative redistricting guru Thomas Hofeller to draw the maps approved by Republican legislators in 2011. So the funder of the architect of the maps also funded the reelection of a state Supreme Court justice who then voted against the legal appeal challenging the maps in 2014. The North Carolina NAACP and others filed multiple motions for Newby’s recusal with the state Supreme Court in 2012 and 2013, but they were rejected.

** The major reason attorneys in a case challenging the actions of state lawmakers in placing a pair of constitutional amendments on the state ballot in 2018 sought Justice Berger’s recusal is because his father, state senate leader Phil Berger Sr., is a defendant in the case — a straightforward conflict for the son’s impartiality. In fact, the case largely deals with the legitimacy of his father’s power and position, i.e., whether Republicans legitimately won majority control of the General Assembly when it took the actions challenged in the lawsuit.

But there’s a major campaign financing conflict involving Justice Berger, too. The majority of the money he raised for his successful campaigns for North Carolina Court of Appeals in 2016 and for the state Supreme Court in 2020 depended heavily on his father’s position as leader of the state Senate and the most powerful Republican in North Carolina. How can the son rule impartially in a redistricting case that is all but certain to have a huge impact on the political fate of his major benefactor?

The campaign money Berger Jr. has raised going back to 2014 has largely come from the Republican Party and donors tied to political appointees and lobbyists who seek favorable treatment from Berger Sr., the Senate boss. Berger Sr. has even served as a featured speaker at Berger Jr.’s fundraisers. In fact, in a response to a complaint that I filed with the State Board of Elections, Berger Jr. had to amend his campaign reports to reveal two fundraising events that were paid for by political appointees and a third fundraiser at the home of a leading lobbyist – with Berger Sr. at each one.

The bottom line: If they truly believe what they’re saying, the Republican legislators who want Justice Earls removed from the redistricting case should first ask Justice Berger and Chief Justice Newby to recuse themselves.

Click here to see the recusal motion filed vis a vis Newby in 2012. The most relevant portions can be found on page 28.

Bob Hall is the retired executive director of the group Democracy North Carolina and a veteran government and politics watchdog.

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