NC Gov. Josh Stein defends power to fill vacancies on top courts
AI-generated summary reviewed by our newsroom.
- Gov. Josh Stein defended his authority to appoint judges against legislative limits.
- Legislature argued state constitution only requires governor to retain some choice.
- Appeals panel heard case after lower court ruled for Stein but left other changes intact.
Lawyers for Democratic North Carolina Gov. Josh Stein defended his power to fill vacancies on the state’s top courts Tuesday during a hearing before the Court of Appeals.
Arguing before a three-judge panel, attorney Daniel Smith contended that the Republican-controlled legislature’s attempt to limit Stein’s appointments to nominees selected by the political party of the departing judge was unconstitutional.
“The ultimate appointee, if this is allowed to take effect, will be someone that partisan insiders have chosen — and that’s not something that the people want,” Smith said.
Lawyers for legislative leaders, however, argued that although the governor’s choice is limited to a list proposed by the party, the state constitution requires only that he has a choice.
“There is no language there that suggests how the governor is to choose among his nominees to make the appointee,” Martin Warf, an attorney for the legislature, said. “... Unless there is an explicit limitation on an act of the General Assembly, then the General Assembly’s act would be constitutional.”
Judge John Tyson, a Republican, questioned how far this line of reasoning could go.
“If the General Assembly had provided that the nominees would be provided by, say, the mayor of Charlotte — or, let’s say even worse, provided by the person the governor defeated in the general election — do you see any difference with that?” he asked.
“I still think that would be OK,” Warf responded. “... I do not think that would be a very wise move that the legislature would pass. But constitutionally speaking, there is an opportunity for choice, and that is what the constitution requires.”
The panel, which consisted of two Republican judges and one Democrat, did not indicate when it would issue a ruling.
The law affects vacancies on the Court of Appeals and state Supreme Court. It requires the governor to choose from a list of three party nominees.
Tuesday’s hearing comes after a lower court unanimously ruled in Stein’s favor this summer, finding that the limitation on his power to fill vacancies was unconstitutional.
That same court, however, declined Stein’s request to block other legislative changes that stripped him of some authority over the Utilities Commission and Building Code Council.
Those changes are also at issue in Tuesday’s case, though most of the hearing revolved around the judicial vacancies portion of the lawsuit.
This story was originally published October 28, 2025 at 12:54 PM with the headline "NC Gov. Josh Stein defends power to fill vacancies on top courts."
