Wednesday, November 03, 2021

The Berger Dominion

So there's a watershed legal case testing a judge's duty for recusal currently in the hands of the North Carolina Supreme Court, and here's where it started:

2018 -- Republican majorities in the General Assembly, led by Phil Berger and Tim Moore, put two ballot initiatives to the voters, who passed them -- a mandate for a voter photo ID and a constitutional cap on state income taxes. (The GOP's previous attempt to impose voter photo IDs had been ruled unconstitutional.)

2019 -- A North Carolina trial judge strikes down the amendments, declaring that since many legislators were illegitimately elected from what were previously declared as racially biased districts, they lacked the power to put the questions on the ballot.

2020 -- NC Court of Appeals overturns that trial court decision, and the case gets appealed to the NC Supreme Court.

Phil Berger Jr. 
August 2021 -- Supreme Court schedules arguments by opposing sides but pauses the proceedings after the NAACP requests that justices Phil Berger Jr. and Tamara Barringer recuse themselves from hearing the case. The reasons for recusal: Berger is the son of one of the defendants and Barringer voted for passage of the amendments as an NC senator.

30 Seconds Later -- NCGOP begins howling about a Democratic power grab at the Court.
“The attempt to disqualify them from hearing cases the voters elected them to hear is a subversion of the will of the people and an insult to every informed voter,” said House Speaker Tim Moore, who is also named as a defendant in the NAACP lawsuit.

October 2021 -- A majority of the Supreme Court votes to take the issue seriously -- should Berger and Barringer recuse themselves or be forcibly recused? The Court is 4 Ds to 3 Rs, so over the strenuous dissents by the Republican minority, the Democratic majority decides to halt proceedings until briefs can be submitted by both sides addressing 20 questions about judicial recusal, especially this one: “Does this court have the authority to require the involuntary recusal of a justice who does not believe that self-recusal is appropriate?” Those legal briefs were due at the court this week.

According to the Associated Press, that question alone suggests that one, or both (Berger and Barringer), have indicated that they would not recuse themselves. "Neither responded to a request for comment that The Associated Press asked a court spokesperson to pass along to them."

Did the trial judge back in 2019 go way out on a legal limb? I personally wouldn't want to put all my weight on that particular twig, that a legally elected official's acts are illegitimate because the district that elected him was racially biased. He/she was elected and had no control over who made up the electorate.

Phil Berger Sr.
The case for Berger Junior's recusal seems so obvious it hurts my eyes. The state judicial conduct code says judges should disqualify themselves "when asked by a legal party," if they have “personal knowledge of disputed evidentiary facts” or if the judge’s near-relative is “a party to the proceeding.”

The judicial conduct code requires disqualification even if a near relative can in fact be "impartial and capable of presiding fairly over the matter before them,” NAACP attorney Kym Hunter wrote in July. Berger Junior will for sure never recuse himself. Will his fellow justices let him get away with that and further taint the North Carolina judiciary?

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