Supreme Court candidates navigate partisan campaigning and judicial integrity
They may be the most consequential races in North Carolina this year, yet most people don’t even know who’s running.
North Carolina Supreme Court races aren’t traditionally on voters’ collective radar, but as the public has begun viewing the courts as more politicized, and with all that may be at stake in the coming years, those on the bench and those in the two major parties are doing what they can to bring the elections to the fore.
There are two associate justice seats open on the seven-person court in 2022. Right now, Democrats control four of the seven seats, but the party needs to win both elections to maintain that advantage. But as Election Day nears, Republicans are looking more like they’ll end up flipping the court by winning at least one of the two seats.
A recent WRAL poll had both Republican candidates up on their Democratic opponents (although one race is within the margin of error), but they both also had a substantial percentage of undecided voters at 24-31%. So while it seems Republicans may have an advantage, there’s still plenty of hope for Democrats to retain the majority.
And there’s reason for the parties to fight as hard as they can to win over undecided voters. Given the political gravity of some of the cases recently heard by the court, shifting that balance could be pivotal for Republicans, who are highly likely to maintain control of the House and Senate and may even gain a veto-proof supermajority.
But with how many crucial political cases may be on the line in the coming years and candidates now running partisan races, the question many are asking is this: are the courts becoming too politicized?
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The North Carolina Code of Judicial Conduct prohibits judges from weighing in on the “merits of a pending proceeding” in any court regarding a case that involves any North Carolina law at all. This means that in their interviews with The Smoky Mountain News, candidates didn’t speak on specific issues. However, they did offer insight into their backgrounds, their philosophies and their reasons for seeking a seat on the state’s highest court. Here’s a look at the candidates.
- Lucy Inman and Richard Dietz.
Seat 3
Seat 3 on the North Carolina Supreme Court will be vacated by Democrat Associate Justice Robin E. Hudson, who has held it since 2007 but is nearing age 72, at which point state law dictates she must retire.
The Democrat running to replace Hudson is Lucy Inman.
Inman’s love for the court was cultivated during her first, brief career as a print reporter, which led her to cover the cops and courts beat.
“It gave me, a young woman, not just permission but responsibility to ask questions of all kinds of people — powerful people, not powerful people,” she said.
Inman decided to go to law school, and her first job after graduating in 1980 was clerking at the North Carolina Supreme Court under Chief Justice James G. Exum. When Inman’s husband went to graduate school in Los Angeles in 1992, she accompanied him and took a job with a firm where she handled commercial civil litigation and First Amendment work.
But in 2000, Inman was called back to the Tarheel State and as early as 2006, she began thinking about a spot on the bench when her law school classmate and now Congresswoman Deborah Ross encouraged her to run for a judge’s seat. After applying for multiple vacant Superior Court seats, she was appointed to one by Gov. Bev Perdue in 2010.
In 2014, she won a seat on the Court of Appeals. January 2019 marked the midpoint in Inman’s term on the Court of Appeals, and it’s also the month that Chief Justice Mark Martin announced he was retiring. While Inman didn’t consider seeking that appointment, once Cheri Beasley was appointed to that seat, an associate chief justice seat opened up. Inman decided to make a run for the seat in the 2020 election, but ultimately lost to Republican Phil Berger Jr. by a narrow margin.
“I didn’t feel like I had been denied a position that I was entitled to,” she said. “I love my work at the Court of Appeals. I took some time to do nothing but shore up all my work at Court of Appeals and reconnect with my family and those things you do after a tough election.”
It wasn’t long before she decided to give it another go and announced her candidacy once Hudson said publicly that she wouldn’t seek reelection.
Inman’s opponent for the soon-to-be-vacated seat is Republican Richard Dietz.
Dietz is from the mountains of Central Pennsylvania but attended Wake Forest Law School, after which he clerked under a U.S. District Court judge in West Virginia. After spending some time in Washington, D.C., he began practicing in North Carolina, becoming a partner at Winston-Salem’s Kilpatrick, Townsend & Stockton, where he handled high-profile, complex appellate cases. Along with writing briefs and researching case law, Dietz said he spent much of his time “up at the podium answering judges’ questions.”
“When you do that for your whole career, for a lot of appellate lawyers, it’s the dream to put on the robe and decide these cases,” he said.
In 2014, as Dietz was coming off arguing Abramski v. United States, a prominent gun control case, in front of the United States Supreme Court, Gov. Pat McCrory appointed him to the Court of Appeals to fill a vacancy. Dietz said the appointment felt natural given his established history handling appellate cases. He successfully defended his seat in 2016.
Something Dietz prides himself on that he’s repeated on the campaign trail is his record of having never authored a dissent while on the Court of Appeals. Court of Appeals cases are heard by three-judge panels, and consensus is never a guarantee. However, dissent may be more likely on the seven-person Supreme Court.
“There are more voices, but the skill is the same,” Dietz said. “It really doesn’t matter how many people are part of the group to persuade, it’s about collaborating.”
- Sam Ervin IV (left) and Trey Allen
Seat 5
The only incumbent in either race is Sam Ervin IV, a Democrat who has held a spot on the Supreme Court since winning a seat in 2014.
It’d be fair to say donning the robe is in Ervin’s blood. His grandfather was a judge before becoming a U.S. Senator, his father was a state and federal judge for about 30 years and his brother is a sitting Superior Court judge.
Ervin, who knew from a young age that he was interested in public service, said his decision to become a judge was directly influenced by his father. However, it was also influenced by his time with the National Association of Regulatory Utility Commissioners, which he said operates quite a bit like a court that handles complex cases.
“It gave me some exposure to what being a judge is like,” he said. “I enjoyed being on the Utilities Commission very much, but … I wanted to get back in, for lack of a better word, the regular court system, and ran for the Court of Appeals for that reason in 2008.”
Ervin won that race and began his appellate career.
In addition to being interested in the kinds of cases that come before the state Supreme Court, Ervin thought his talents might serve the state’s highest court well. Along with being able to digest a tremendous amount of written material, weeding out invalid arguments and understanding the law, he also mentioned his ability to work collaboratively to build consensus.
“You have take what other folks say into account, hopefully persuade them of the merits of your positions, and try to come up with the best decision you can collectively,” he said. “So an appellate judge has to have the ability to work with others, in addition to doing all these other things.”
With that in mind, Ervin ran and won a seat on the Supreme Court in 2014.
This go-round, Ervin is facing off against Trey Allen to retain his seat.
Allen, the only candidate tested with a primary race, had a strong showing back in May. Allen, who’d never previously run for any elected office, said he’s learned a lot about the campaign process as he’s traveled the state and talked to voters.
“It’s been really encouraging to meet so many good people across North Carolina who care about the future of our state and the future of our courts,” he said.
Allen cut his teeth as a Marine Corps Judge Advocate General and deployed to Iraq. He is currently the general counsel for the North Carolina Administrative Office of the Court (AOC), which is charged with running the judicial system statewide. Prior to assuming his role with AOC, Allen was an associate professor of public law and government at University of North Carolina’s School of Government.
Although Allen is the only candidate for either seat who doesn’t have any time on the bench, he feels his experience in academia will translate well, especially given the unique role the School of Government plays.
“Local governments and judges turn to faculty for unbiased legal opinions,” he said, adding that he felt he worked well with his colleagues despite his conservative views putting him in the political minority. “We all had the same commitment to giving our best assessment of what the law was with regard to any issue brought to us.”
Allen has never sought a spot on the bench or run for any other elected office. But as he began to consider what that might look like, he said he had “lots of people” urge him to run for the Supreme Court, and with that encouragement, he felt that would be his best step forward. But he added that he felt even a stronger pull.
“I appreciate their encouragement, but the primary reason is the Supreme Court is where the real problem is now,” he said. The problem I have in mind is the problem of political judgments, or at least what are perceived by the public as political judgments.”
Politics and the bench
Last week, The Assembly published a story titled “The Most Important Election You Know Nothing About” that posed two broad questions: Are our courts too politicized? And is there a better way to decide who becomes a judge than partisan elections? The in-depth story quotes Rep. Joe John, a Wake County Democrat who introduced a bill to again make judicial elections nonpartisan.
“I strongly feel that it is just wholly inconsistent to expect judges to be fair, objective, impartial, etc., on the one hand, and then, on the other, require them to conduct themselves as partisan politicians,” John, a former Court of Appeals judge, said in that story. “As the kids say, does not compute.”
The move to partisan races happened in 2017 when the Republican supermajority in the General Assembly overrode Gov. Roy Cooper’s veto to enact the law. Dr. Bobbi Richardson is currently the chair of the North Carolina Democratic Party, but when that bill was passed she was a member of the General Assembly.
“It was very disappointing, and it was also a very visible show of power,” she said.
Western North Carolina University’s Chris Cooper, who heads up that school’s Political Science department, had an opinion on exactly when things changed for Republicans.
“Mike Morgan’s election shocked a lot of Republicans,” he said. “Morgan is an African American Democrat who won under a nonpartisan ballot in some counties where that seemed to be unlikely. That was the moment the Republican Party decided to switch to partisan.”
Currently, North Carolina is one of seven states to run partisan judicial elections. Add to this the fact that public trust in both the United States Supreme Court and state supreme courts has fallen, and it’s clear that the judiciary is facing a crisis of perception.
The courts’ politicization has increasingly been a topic of conversation for a few years now but has heated up even more over the last year. At the heart of some of those conversations have been Justice Phil Berger Jr., still early in his term, who endorsed Allen in his primary. Likewise, North Carolina Supreme Court Chief Justice Paul Newby also voiced his support for Allen in a tweet that was not technically an endorsement. This prompted an ethical debate among those interested in the integrity of the bench.
While some argued the support Allen received in the primary pushed the envelope, there’s no doubt the General Election is looking more like a full-on political campaign. The super PAC Results for NC, Inc., which is tied to Sen. Thom Tillis, amid a slew of pin-pointed donations, bolstered Republican Supreme Court candidates with donations of $5,600. In addition, former Rep. Mark Walker launched winthecourts.com, a website that supports Republican candidates for the Court of Appeals and Supreme Court. Walker has occasionally promoted the effort on social media, showing off a bus bearing the likeness of each candidate on its exterior.
In this tweet, Chief Justice Paul Newby expressed his support for Trey Allen but didn’t technically offer an endorsement.
And while the most recent round of fundraising data isn’t available until later this month, the numbers so far are up across the board compared to what’s typically seen.
“It used to be state Supreme Court races didn’t have a lot of money behind them. They weren’t divorced from politics, but they were to the side of normal politics,” Cooper said. “Those days are over.”
Bob Orr spent much of his career practicing law in Western North Carolina before serving as an appellate judge and eventually an Associate Supreme Court justice from 1995-2004. Orr said the state has seen judicial races change significantly over recent years as they’ve become more politicized.
Orr also noted that the uptick in challenges to legislation that have come before the court has also increased the number of cases that are perceived as political.
“It’s hard not to evaluate a politically charged piece of litigation, whether that’s redistricting, voter ID, or separation of powers,” Orr said.
In his NC Tribune, Colin Campbell opined that even before he opened the court’s ruling on a legal challenge to two 2018 constitutional amendments , he knew how each justice would rule. Likewise, Mitch Kokai from the conservative Carolina Journal wrote about how frequent party-line decisions have become . Orr noted that with the way the conversation is going, with so many fervent debates over whether the courts are politicized, at some point, that may just become a “self-fulfilling prophecy.”
“The media is a contributing factor, whether it’s mainstream or ideological media,” he said. “The more you categorize a decision as politically driven, the more the public accepts that they are politically motivated decisions.”
The strategists’ take
Richardson, in her role as state Democratic Party chair, understands the strategic importance of judicial races. As her party’s candidates are down slightly in the limited polling available, she said Democrats are fighting to keep the majority on the Supreme Court.
“We are committed to making sure our judicial branch is covered, and we have put resources toward them and developed a year-round organizing program,” she said.
Richardson noted that it’s tough to compare the work put in on a national campaign like Cheri Beasley’s Senate run to a state Supreme Court race because the national race draws fundraising efforts from far and wide, which leads to far more resources. All the same, Richardson said she features Ervin and Inman at any statewide event she can. At a “Building the Blue” block party two Saturdays ago, there were plenty of candidates that did not talk — but both Ervin and Inman did. Richardson said the party also has a staffer assigned to the judicial candidates to make sure the party is up to speed on what those campaigns need.
“We’re working hard, even if it may not seem like it,” she said. “Of course, we don’t have competitive money to keep them on the air all the time, but we are going to put all the resources we can, some will be people knocking on doors, making phone calls and texting.”
NCGOP Chairman Michael Whatley described his party’s strategy and the importance he has placed on judicial races since he took up his role in 2019. Whatley, who has a law degree and clerked for a federal judge in Charlotte for a time, noted that when he stepped up to chair the party, Democrats held a 6-1 majority on the court.
“Literally the first meeting I had as party chair was with Paul Newby to talk about our Supreme Court races and what kind of a campaign we needed to put together to win our statewide judicial races,” Whatley said.
“What we did was two things,” he added. “First, we put all of the Supreme Court and Court of Appeals candidates together as a slate. We want to build brand recognition as conservative judges because North Carolina voters overwhelmingly support conservative judges over activist judges.”
The party also created the Judicial Victory Fund, which Whatley said invested $1.2 million into judicial races in the 2020 cycle, which brought Newby a narrow victory over Beasley for the Chief Justice seat.
In his interview with SMN, Chris Cooper said a problem in what are generally low-information races is simply ensuring voters get to know candidates so they can make informed decisions, adding that he’s encountered plenty of folks who don’t understand that North Carolina Supreme Court races are state and not federal and that their job is to apply the law is it pertains to the North Carolina Constitution.
“People don’t know a lot about these candidates still, despite the fact we may see record sums spent,” Cooper said. “Your average voter couldn’t pick any of these candidates out of a lineup.”
Cooper believes that means the national parties’ “moods” will take an outsized role. And in a midterm election which typically favors the party not holding the White House, that could be bad news for Democrats, who are already behind in polling.
Despite what may be a built-in advantage for Republicans this year, Whatley said he’s still doing what he can to ensure interested voters know the party’s judicial candidates.
“What we want to do is build recognition for the conservative judges slate because that will have a chance to break through,” he said. “Also, we are working hard with all 100 county parties to get them to push judicial slate cards and highlight the judicial candidates at their party events.”
Whatley said winning judicial races is one of NCGOP’s highest priorities, if not its highest, and if that means using the advantages that may present themselves due to these being partisan races, so be it. After all, you have the play the game to the best of your ability under the current rules, no matter what those may be.
Candidates’ concerns
While candidates’ commercials for any office tend to either hammer their opponent or convey a message they know will resonate with their base, Lucy Inman went a different direction. Her ad shows the different “hats” justices wear — judge, truth seeker, referee — all black and white. Then she shows the hats justices should never wear — a red MAGA hat and blue “Joe” hat. The message was simple; Inman was appealing to voters who perceive the courts have been politicized by simply saying she wouldn’t go along to get along.
Inman acknowledged she’s a lifelong Democrat, but she added that she’s never been too active in the party. And it seemed like that’s the way she wished it could still be. She fondly recalled running in 2014 when her Court of Appeals race was nonpartisan and she could have the ear of all voters, donors and potential endorsements.
But after running a partisan race in 2020, she said it’s hard to gain that same kind of traction with folks who harbor different beliefs.
“When it was changed to partisan, asking someone of a different political party to support your campaign comes off a little bit like asking someone to cheat on their spouse or be disloyal,” she said.
Inman and the other judges all firmly said they would rule based on their interpretation of the law and not their political party or what may conform with anyone else’s agenda. In addition, while the candidates can’t express what they feel toward certain issues, three of four openly lamented the partisan judicial elections.
Dietz said campaigning in a partisan judicial election puts more of a spotlight on those candidates within their own parties.
“The Public sometimes looks at judges as candidates and says ‘this person seems to be on a political mission. They’re hanging around with politicians and that sort of thing.’ Then when the candidates become a judges and rule, the public has that perception,” Dietz said. “The whole point of judges is that we can’t do that. In every case, we set aside our personal views and look at the case fresh.”
Dietz, calling back to the fact he hasn’t authored a dissent in his time on the Court of Appeals, said the nature of recent decisions and the way some majority opinions and dissents have been written like “they’re shouting at each other” can create greater public skepticism of the courts. This can lead to an erosion of trust toward a body that must be perceived as independent.
“I think that over the last year or two, I have encountered more voters who have said the courts seem so political,” Dietz said. “I don’t remember it being like this in the past.”
While Dietz spoke about how the political process may harm people’s perception of the court, Allen didn’t go quite that far. He agreed there’s reason to be concerned about the erosion of trust but believes there are pluses and minuses to both partisan and nonpartisan judicial elections.
“One plus is that party affiliation gives voters at least some additional information about some judicial candidates to the extent they associate certain party labels with certain judicial philosophy,” he said.
Along with some states having nonpartisan judicial elections or merit selections, some other states only fill spots on the bench by appointment. But Allen believes judicial elections are a good method of picking judges since it allows voters to hold them accountable at the ballot box.
“It’s not a perfect system by any means,” he said. “But there needs to be some mechanism of accountability.”
Ervin said that since he’s been on the court, the number of split decisions has noticeably risen. He added that part of the way to defeat the politicization narrative is to work well and be collegial with colleagues, even while disagreeing. Either way, he said he tends to find common ground and avoid dissenting.
“I haven’t done the math, but I suspect that I’ve probably been in majority, as much, if not more than anybody else on court during my time in office,” he said.
Ervin said that while there has always been interest from the parties in judicial elections, their level of involvement has intensified.
“You’re involved in activities that you probably wouldn’t have been, in the sense of getting invited to things and getting information for canvassers,” he said. “I don’t remember being the case in the past.”
Ervin shared the overall concern many have. Whether or not justices are ruling in ways that would advance their party’s agenda, the perception alone is damaging. He said it’s understandable that the average voter would believe judges are more political based on the partisan elections alone. Ultimately, he has a fear similar to Orr’s.
“I’m concerned that over time that decision is going to make judges look more political,” he said. “And if that perception develops, I don’t see how there is any likelihood that it would not impair public confidence in the courts. I haven’t done a study of survey data to see what the status of the situation is now, but I’m very concerned that the continued use of this new method for electing judges will impair the concreteness of the court.”
On the line
Democrats and Republicans both seem to understand how much is at stake when it comes to protecting their values — and agendas — through the courts. Richardson said she understands how important these Supreme Court seats are for her party, saying hypothetically that she could see controversial bills like HB-2 getting upheld in a Republican-majority court.
“Those rights can be protected as well if we do not elect the right people,” she said.
Richardson noted that with the Dobbs decision, more restrictive abortion laws are likely to end up before the state’s highest court. Through the Dobbs decision, the United States Supreme Court overturned the precedent established in Roe v. Wade that constitutionally guaranteed a woman’s right to an abortion. Since then Republican state representatives across the country have begun to consider what they want restrictions to look like.
In addition, there are several consequential elections-related cases that will probably come before the court, especially after new elections maps are drawn prior to the 2024 cycle. At the heart of many of these issues is the overarching question of whether checks and balances in the state will shift power one way or the other, specifically from the executive and judicial branches to legislative.
“We have been fortunate in North Carolina because we have had the judicial branch that could rule on maps that were drawn, unlike some other southern states,” Richardson said. “The judicial branch ruled the gerrymandering of the last maps unconstitutional. Those maps would have given 10 congressional districts for Republicans and four for Democrats, and also would have given Republicans a supermajority in the General Assembly.”
The stakes for the Supreme Court races will prove to be even higher if Republicans manage to secure supermajorities in the House and Senate, meaning they could overturn any veto Democratic Gov. Roy Cooper may issue. If that happens and Republicans are able to move their agenda forward with no resistance, some of these cases are highly likely to face litigation that will end up before the Supreme Court.
Cooper said that while he believes Republicans won’t likely gain enough seats to secure those supermajorities, people can expect see some serious changes if Republicans pull it off while also flipping the court.
“Make no mistake,” he said, “it will be a different state if Republicans are able to achieve those things.”
