Peele: A judicial election gone astray

Dec. 15, 2012 @ 02:26 PM

Last September, I read that North Carolina Supreme Court Justice Paul Newby was the keynote speaker at a Tea Party gathering near Asheville.

“Whoa!” I thought. “Can this be right? Aren’t judicial races in N.C. supposed to be nonpartisan?” (I would be just as surprised if a judge agreed to be a keynote speaker at an ACLU gathering.)

This was particularly shocking to me because I knew Justice Newby to be a learned and intelligent man who was admired by attorneys, and judges.

Justice Newby was then in the midst of his campaign to keep his seat on the N.C. Supreme Court. He was running against Sam Ervin IV, the grandson of the famous Sen. Sam Irvin of Watergate fame, who is an N.C. Court of Appeals justice.

Alas! The electioneering got worse.

An ad ran for Newby which featured a man playing a banjo singing a corny song about how Newby was “tough on crime.” It showed two criminals having handcuffs snapped on their wrists. Most knowledgeable people would say the ad had no apparent connection with the career of Newby. In the first place, the job of a Supreme Court judge is to follow the law, not to convict. Second, when Newby was with the attorney general, most of his work was civil, not criminal.

That ad was not in keeping with the high standards usually seen in judicial ads. It was more like a skit that would be seen on a comedy show, such as “Larry, The Cable Guy.”

The News and Observer reported that super-PACs had paid more than $1 million for the ad.

Worse still, there were attack ads against Ervin. One stated that Ervin’s family made campaign contributions to “convicted felon” Mike Easley, who appointed Ervin to the state Utilities Commission, where Ervin raised utility rates.

This was unfair. Ervin’s family made contributions to Easley when Easley was attorney general, well before Easley became governor. Also, Gov. Jim Hunt originally appointed Ervin to the utilities commission in 1999. This ad was dripping with innuendo clearly intended to give the impression that Ervin was not trustworthy. It was way, way over the line. Again, the ads were paid for by super-PACs, not Newby’s organization.

Many people, including Ervin, also raised the concern that the spending would undermine the public-financing system in North Carolina, which was enacted in 2006, as a way to limit the need for outside money. The Supreme Court candidates could only raise about $80,000 on their own in order to receive $240,100 in state funds.

But two federal court cases caused a 2010 Federal Elections Commission ruling in 2010 that authorized the creation of super PACs which could raise unlimited money for candidates. Conservative groups lined up behind Newby with more than $2.5 million.

Ervin had the support of the state’s Democratic organization, trial lawyers and education interests. It is reported that somewhere around $200,000 in outside money was spent on Ervin’s behalf.

Newby said that he had no knowledge of the attack ad. I believe him. I also believe he should have repudiated the ad.

Some analysts believe the ad tipped the vote from Ervin to Newby.

Here are two negative results from this campaign:

1. This campaign has damaged the reputation of judges all across the state.

2. It will deter many good people from running for judicial offices. How many good people have enough money backing them? Even if they have enough money, who wants to face such unfair attacks?

These campaign ads have upset a lot of people. A nonpartisan elections group and about three dozen Democratic lawyers and former judges issued a warning about the influence that so much outside money might have on the independence of the judiciary.

“We’re definitely going to have to address how judges are selected,” Rep. David Lewis, of Barnett County said. “I can’t think of any possible way it can be worse than it is now.”

He and other legislators intend to propose a new way to elect judges.

May Justice Newby now resume his former history as a fine judge, recuse himself from cases if appropriate, and show us that he will not be influenced by big money.

Stanley Peele serves as an emergency judge throughout the state. Readers can contact him at chh@heraldsun.com or c/o The Chapel Hill Herald, 2828 Pickett Road, Durham, NC.