Fair and unfair when jockeying for judgeships

By Patrick O’Hannigan

The campaign against gerrymandered judicial voting districts made its way onto local airwaves earlier this month, in a TV commercial aimed at the legislative majority. Over a montage of politicians in caucus, meeting chambers, and a judge’s gavel, a narrator advised viewers to “Tell Republicans in the State Assembly to stop the shenanigans.”

Those “shenanigans” include offenses described in that commercial and in talking points at the FairCourtsNC website. Both information channels agree that the most serious of several worrisome schemes involves proposed changes to the election process that would “force African-American judges into elections against each other.”

Describing that outcome in more detail than the TV commercial could, the FairCourtsNC website warns that if House Bill 717, the “Judicial Redistricting & Investment Act,” becomes law, “Nearly half of all black judges would be packed into a district with another incumbent, forcing them to run against each other or step down.”Legislators hoping to prevent that are encouraged to sign the website’s “Lawmaker Pledge,” by which they promise to “Oppose any attempts to inject politics into North Carolina’s justice system, including proposals that would shorten judicial terms, gerrymander court districts, or eliminate elections to allow legislators to appoint judges.”

If you scroll past the photos of politicians who’ve taken the pledge, you find FairCourtsNC website ownership hinted at by logos for NC Voice, Democracy North Carolina, the NAACP, and Progress NC.

I’m not making a case for guilt by association. Republicans deserve to have their feet held to the fire. Even in a state that allegedly has a part-time legislature, people at the levers of power have no desire to give their places up. That said, the campaign for “fairness” rests on unexamined assumptions. For the sake of a healthier body politic, it’s worth examining those assumptions.

Activists treat the idea that African-American judges should not compete with each other for election to the bench as a self-evident truth, without saying why. Are black judges and white judges held to different standards? Are judgeships forms of reparation for old Jim Crow laws? Should “people of color” never compete with one another, and does it rise to the level of “Constitutional crisis” if they do?

You can dismiss those questions as irrelevant or impolite, but there are other questions, too: Is justice impartial? Does group identity outrank individual achievement? Answering “yes” to that only makes sense if you think skin color matters more than education, training, experience, talent, competence, or temperament. Remember how U.S. Supreme Court Justice Sondra Sotomayor tried to waltz through the minefield of identity politics by calling herself a “wise Latina“? And yet her black colleague on the other side of the ideological aisle, Justice Clarence Thomas, has never been embraced by the NAACP.

The problem is that any notion of “fairness” that treats people like colored marbles dehumanizes all of us by reducing life to a game of Aggravation or Chinese Checkers. That approach might be nonpartisan, but it’s also “stuck on stupid.”

Efforts to defend the judicial status quo are part of the bigger fight over election maps that Susan Myrick wrote about late last year. Her story noted that race had played a role in the way district lines were drawn, and said map-makers had worked that way to comply with federal court rulings and provisions of the Voting Rights Act. When later court rulings declared that race had played too much of a role in the map-making, Republicans floated the idea of using maps that ignored racial data. That effort also flunked legal scrutiny. The real problem, Myrick observed, is that “Courts have placed limits on racial gerrymandering without telling anyone just what the limits are.”

More recently, the U.S. Supreme Court placed a temporary hold on the lower court order that would have forced the General Assembly to draft another congressional redistricting plan by January 24. Progressive groups were dismayed by that action, which effectively ensures that existing maps stay the same until after mid-term elections.

If the “Fair Courts” movement had as much respect for heads as it does for hearts, it would supplement the scare tactics at the heart of its campaign with positive messages that explained the advantages of the current system. If a nonpartisan state judiciary is a good thing, for example, tell us why, and explain whether there is more to that than hiding political affiliation whenever the name of a potential judge appears on a ballot.

Are the U.S. Constitution, the Bill of Rights, and the black robes worn by judges not enough to guarantee equal justice under the law? Make that case. Progressives comfortable with philosophizing could even join panelists on NC Spin to explore whether we are tokens or children of God. Talk like that requires thoughtfulness comparable to wielding a scalpel in an operating room. Unfortunately, apart from a few honorable exceptions, local progressives seemingly prefer to work exclusively with mallets.

Patrick O’Hannigan is a Civitas contributor, a father of two and works as a technical writer and editor in North Carolina.