It’s no secret that the United States has a significant and growing problem when it comes to the matter of selecting judges. This problem was on vivid public display in 2016, when the Republican majority of the United States Senate refused to consider a highly qualified presidential nominee to the U.S. Supreme Court for nearly a full year on blatantly partisan grounds.
As troubling as the blockade of Merrick Garland and the subsequent flood of frequently unqualified ideologues advanced by President Donald Trump have been, however, the situation is arguably even more dire at the state level, where the phenomenon of judges running for election continues to give rise to all manner of problematic behavior – both by judicial candidates themselves and the forces supporting and opposing their candidacies.
As Policy Watch journalist Melissa Boughton reported yesterday, there was a new and troubling installment in this ongoing saga last week when North Carolina Supreme Court Justice Paul Newby let loose with a startlingly partisan attack on his fellow justices during a speech to a Wake County Republican audience.
As the story explained, Newby uttered the following remarkable diatribe:
What do you think the most dangerous branch of government is? The judicial branch is the correct answer. Imagine seven AOC’s on the state Supreme Court.”
After being met with clapping and loud “boo’s” from the crowd, the state’s longest-serving Supreme Court justice continued:
Well, folks, we’ve got six. It’s six to one. As my daughter Sarah said, I am the last man standing. I lose sleep at night thinking what would it be like if we had no one to hold accountable those that want to cause social change throughout judicial branch.”
The “AOC” Justice Newby was referring to was, of course, not the Administrative Office of the Courts. Rather, it was New York Democratic Congresswoman Alexandria Ocasio-Cortez, a young and progressive woman of color, who is one of the four members of Congress at whom Trump recently directed his infamous and racist “go back [to the places] from which they came” tweet. Since winning an upset bid to join Congress last fall, Ocasio-Cortez has become a lightning rod for right-wing attacks and her initials are frequently invoked by some conservatives as a kind of slur.
Later in the talk, Newby presaged President Trump’s Twitter assault (which took place the next day) by telling political opponents they could “just leave” the U.S.
Even in places like North Carolina where judges must run for office, Newby’s comments were over the line and inappropriate in several ways.
First of all, Newby uttered his comments at a moment during which Congresswoman Ocasio-Cortez has been the subject of vicious personal attacks and numerous death threats. For any supposedly responsible public official to pour more gasoline onto that fire was inappropriate as a matter of basic human decency.
The “just leave” comment was simply beyond the pale – especially for a man who regularly makes much of his supposed dedication to the Boy Scouts of America.
More to the point of Newby’s status as a sitting Supreme Court justice, however, was the act of attacking his fellow justices (and, thereby, undermining the legitimacy and public perception of the court) in such a blatant and inappropriate way. The North Carolina Code of Judicial Conduct includes several specific prohibitions for judges that are designed to ensure the independence of the judiciary and to keep it – both in fact and in appearance – above the partisan fray.
Canon 1 of the code, for instance, states that:
A judge should participate in establishing, maintaining, and enforcing, and should personally observe, appropriate standards of conduct to ensure that the integrity and independence of the judiciary shall be preserved.”
Canon 2 states:
A judge should…conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Unfortunately, the present-day Code has been loosened over the years to include some truck-sized loopholes (see Canon 7) that allow judges to engage in several forms of “political activity,” so it’s probably unlikely that Newby will be held to account – at least in any official way – for his statements.
But that doesn’t make the statements, or any number of over-the-top campaign ads that we’re likely to see from judicial candidates and dark money advocacy groups over the next 16 months, acceptable. (As an aside, it should be noted that Newby’s 2012 Supreme Court campaign drew millions of dollars in out-of-state support – some of which helped fund a TV ad of highly questionable appropriateness.)
The fact remains that the existence of (and widespread public confidence in) an independent and impartial judiciary is, in many respects, what sets the American experiment apart from much of the rest of the world. And whether one is dealing with judicial appointments or elections, it is a dreadful and dangerous commentary on our democracy if those who would serve as judges are unable to comport themselves with the basic dignity, integrity and propriety that has been traditionally associated with and expected from the judiciary.
Justice Newby just made this serious problem incrementally worse and should apologize.