Paul Newby; Or, Why North Carolina's Judicial System Is So Politically Corrupt

 

Some amazing and thorough investigative journalism by Doug Bock Clark in ProPublica, who spills all kinds of beans about North Carolina's Chief Justice Paul Newby. Did I say thorough! Clark and his team interviewed over 70 people who know Newby professionally or personally, including former North Carolina justices and judges, lawmakers, longtime friends and family members. "Many requested anonymity, saying they feared that he or his proxies would retaliate against them through the courts’ oversight system, the state bar association or the influence he wields more broadly. We reviewed court documents, ethics disclosure forms, Newby’s calendars, Supreme Court minutes, and a portion of his emails obtained via public records requests. We also drew on Newby’s own words from dozens of hours of recordings of speeches he’s made on the campaign trail and to conservative political groups, as well as interviews he’s given to right-wing and Christian media outlets."

The ProPublica reporters attempted numerous times to interview Newby and others in the judiciary, and what they got in one notable case is a promise of trumpian retribution if they didn't stop their digging. "When ProPublica emailed questions to Newby’s daughter, head of finance for the NCGOP, the North Carolina Republican Party’s communications director, Matt Mercer, responded, writing that ProPublica was waging a 'jihad' against 'NC Republicans,' which would 'not be met with dignifying any comments whatsoever .... I’m sure you’re aware of our connections with the Trump Administration and I’m sure they would be interested in this matter,” Mercer said in his email. “I would strongly suggest dropping this story.”

Day-um!

1. Beware a Judge "On a Mission From God." Newby has said repeatedly that he believes God has called him to lead the court and once described his mission as delivering “biblical justice, equal justice, for all.” (We remember "biblical justice." It involved a good deal of stoning and summary executions.) Newby told the modest little story that back in 2004, when he made his first run for a seat on the Supremes, “I had a sense in my heart that God was saying maybe I should run.” He's got a rigid and uncompromising fundy streak. He speaks openly about how faith has shaped his administration of the courts, which included squashing diversity efforts and purging LGBTQ aides and assistants. "He’s packed higher and lower courts with former clerks and mentees whom he’s cultivated at his Bible study, prayer breakfasts and similar events." Before Newby squeaked out his win over Cheri Beasley in 2020 (by a margin of 401 votes), his wife Macon, a pretty accomplished conservative political activist in her own right, wrote to friends, asking for their prayers: “Paul, as a believer in Christ Jesus, is clothed in the righteousness of Christ alone,” her note said. “Because of that, he has direct access to Almighty God to cry out for wisdom in seeking for the Court to render justice.”

"His tendency to see people as either with him or against God has at times led to conflicts with political allies, associates and even relatives. That includes two of his four [adopted] children, from whom he’s distanced over issues of politics and sexuality."

2. Little Ruthless Dictator. In February 2023, with the newly installed 5-2 Republican majority on the Supreme Court barely sworn in (Republican judge candidates had swept the Nov. 2022 elections), Justice Phil Berger Jr., Newby’s right-hand man and "presumed heir on the court," circulated a draft of a special order Newby was engineering. He fully intended to do something unprecedented and highly controversial, rehear and reverse a case that had been decided just weeks before -- the outlawing of partisan gerrymandering that the previous Supreme Court, dominated by Democrats, had just ruled (giving North Carolina an independent redistricting plan that led to a 7-7 split in its Congressional delegation). Newby intended to overturn that, which he did, because he rules absolutely the other Republicans on the Court. He made the decision to rehear the case and then demanded that the other judges agree without debate and via email their assent to him in 24 hours. By email. No in-person judicial conference to consider such a momentous and clearly partisan move to invalidate the previous court's finding. Within the hour, the court’s Republicans all caved. "Its two liberal justices, consigned to irrelevance, worked through the night with their clerks to complete a dissent by the deadline." Newby then wrote a majority opinion declaring that partisan gerrymandering was legal and that the Democrat-led court had unconstitutionally infringed on the legislature’s prerogative to create electoral maps.

3. Newby's"Climate of Fear." What puts the "petty" in "petty little dictator"? Vindictiveness. Newby's power as chief justice allows him to promote or demote judges on lower courts. He decides who serves as their chiefs and who holds prestigious committee posts. Newby demoted or forced into retirement as many as nine senior judges with little public explanation; all were Democrats or moderate Republicans, and had clashed personally with Newby or his allies. Among the most notable was Donna Stroud, the Republican chief judge of the Court of Appeals, whom Newby removed after she was reported to have hired a clerk favored by Democrats over one favored by a fellow Republican justice. Newby replaced Stroud with a close ally, Chris Dillon. In 2022, after the Judicial Standards Commission’s longtime director clashed with Dillon about limiting judges’ political activity, she was ousted. Her replacement, Brittany Pinkham, swiftly led two investigations into alleged misconduct by Democratic Supreme Court Justice Anita Earls, who had spoken publicly about Newby’s actions to end initiatives to address a lack of diversity in the court system. Newby had personally encouraged at least one of the investigations into Earls. 

Neither investigation resulted in sanctions, but judges said that, in combination with the firings and demotions, the probes conveyed a chilling message that Newby would punish those who crossed him. Several judges said they were intimidated to the point that it shaped how they did their jobs. Some said they or others had felt pressured to participate in prayers that Newby conducted at courthouses or conferences.

Judges and court staffers “are afraid of speaking out,” said Mary Ann Tally, a judge who retired near the beginning of Newby’s tenure as chief justice when she hit the statutory retirement age. Tally, a Democrat, said other judges had told her they were “afraid of Newby retaliating against them or that they would end up in front of the Judicial Standards Commission.” ProPublica spoke to more than 20 current or former judges who expressed fear that Newby or his allies might seek to harm their judicial or legal careers.

4. The Adoption Business. When Newby and his wife went looking for a fourth child to adopt, they found a pregnant teenager willing to have her baby and give it to the Newbys for adoption. "The child’s birth mother, Melodie Barnes, had split from her boyfriend after getting pregnant and, with the help of a Christian anti-abortion network, moved to Oregon, which then allowed mothers to put babies up for adoption without their fathers’ consent. Barnes’ ex disputed the adoption, obtaining a restraining order to halt the process. According to news reports, the Newbys and their lawyer were notified of this before the birth, but went forward anyway. They took custody just after the baby was born. Two weeks later, when a court ordered the Newbys to return the child to her father, they instead sought to give the baby to Barnes, someone who shared their evangelical beliefs. Soon after that attempt, a court order compelled Barnes to give the baby to her father." Eventually, the Newby's successfully adopted another baby girl.

The Newbys went on to start two adoption agencies, including Amazing Grace Adoptions, whose mission was to place children in Christian homes and save babies from abortion. In late 2021, Newby wrote an opinion in an adoption case involving Amazing Grace Adoptions. After he and his wife founded that agency, he had gone on to serve on the agency’s board of directors and touted his connection to it during his 2004 Supreme Court campaign. Yet he did not recuse himself from this case nor admit he had what looked like a potential conflict of interest. He did, however, rule in Amazing Grace's favor.

5. The Dark Money Nexus.  In his first reelection campaign in 2012, he was running against a Democrat with legendary connections, Sam J. Ervin IV. Ervin was said to be leading in the polls. He was relying on the $240,000 granted by NC's pioneering public financing system (long ago killed by the Republican General Assembly), while in the closing days of the campaign Newby's bank account grew $2 million from dark money contributions. "The cash funded waves of ads supporting Newby and blasting Ervin. TVs across the state blared what became known as the 'banjo ad,' in which a country singer twanged that Newby would bring 'justice tough but fair.' ”

6. Stealth Political Lobbying.  After the Red Wave of 2010 (the Tea Party election), Newby became a constant influence on Republican legislation coming out of the General Assembly. "His backchannel conversations with General Assembly members were 'openly known' among court and legislative insiders, one former lawmaker said." At Newby's behest, in 2013 the legislature did away with public financing for judicial candidates, making them reliant on private contributions and dark money groups. Legislators also passed another measure Newby favored, making investigations by the courts’ internal watchdog, the Judicial Standards Commission, secret and giving Newby himself veto power on sanctions and on whether cases became public. For Newby, it was revenge, for he himself had drawn the commission’s scrutiny for engaging in activities that undermined his impartiality, including attending a rally against same-sex marriage in his first year on the bench. With his new powers, Newby quashed disciplinary actions against two Republican judges who had admitted to egregious breaches of the state’s judicial code. The decisions to quash the discipline remained secret until ProPublica reported them. In 2016, Republican lawmakers handed Newby a third victory when they began phasing out nonpartisan judicial elections, making them all partisan contests.

7. When You're On a Mission From God, The Rules Don't Apply To You.  George Mason University’s Antonin Scalia Law School spent about $14,000 to cover expenses for Newby and three of his Republican colleagues (Phil Berger Jr. was among them) to fly to Honolulu for a weeklong judicial conference held at The Royal Hawaiian Resort, a pricey beachfront hotel known as the “Pink Palace of the Pacific.” "The four NC judges went to lectures on conservative legal principles in the mornings, then enjoyed local attractions, from hot-tubbing to hiking, the rest of the day, according to a ProPublica reporter who was at the event. On the final evening, they attended an outdoor banquet lit by tiki torches that featured a whole roasted luau pig. Only one of the four — Berger — disclosed the trip in their annual judicial ethics forms, though the form directs judges to report gifts of over $500. Newby didn’t respond to questions from ProPublica about the trip or why he didn’t report it. The rules for judicial behavior also state that judges “may not personally make financial contributions” to candidates seeking elected office, but campaign finance data shows that Newby is among more than a dozen judges and judicial candidates who have ignored this prohibition. He’s made four such donations since 2008, including one in 2022, when he was chief justice." According to the Center for Public Integrity, he ruled at least six times in cases involving Duke Energy or its subsidiaries while he and his wife held stock in the company, always siding with it.

Rumplestiltskin Is Dragging the Allison Riggs Case

 

Lynn Bonner, for NCNewsline:

Chief Justice Paul Newby

The [Paul Newby] state Supreme Court has rejected a request to speed up the case Judge Jefferson Griffin brought against the state Board of Elections in his attempt to win a seat on the high court.

The State Board and Justice Allison Riggs wanted the case to go right from the trial court, where they won, to the Supreme Court, skipping the Appeals Court. Griffin opposed the move.

The Supreme Court on Thursday rejected the Board and Riggs’ request in a 4-2 vote.

What it's really about:

If the Appeals Court rules in Griffin’s favor, and the Supreme Court splits 3-3, the Appeals Court decision will stand. In a previous order, three of the Republican Supreme Court justices indicated they are open to Griffin’s arguments. [Republicans have an 11-4 numerical advantage on the NC Court of Appeals. The three Supremes who said they were "open" to Griffin -- Newby, Phil Berger Jr., and Tamara Barringer.]

If the Supreme Court had split 3-3 after agreeing to take the case directly from the trial court, the trial court’s decision in favor of Riggs and the Board would have stood.

Chief Justice Paul Newby is not anything if not a highly partisan, self-righteous, and spiteful ... lawyer. Parroted by two highly partisan associate justices, Baby Berger and Tamara. 

In her dissent, Associate Justice Anita Earls was as incisive and brilliant as she always is. She wrote that skipping the Appeals Court "would have been in keeping with past practice in other cases": 

Judge Riggs 

“There is strong justification for this Court to expeditiously address, with transparency, the significant issues in this case that go to the heart of what democracy requires under the state Constitution,” she wrote.

“Judge Jefferson Griffin’s opposition to the bypass petition begins by asserting that this Court should not hear this case because, as a Court of six members, we might split 3-3 leaving the lower court’s ruling as the final ruling in the case. In other words, he asks us not to hear the case because he might lose. Such outcome-determined reasoning has no place in a court committed to the rule of law.”

In a statement last night, Judge Riggs [who has recused herself from this case] said. “No matter how long this drags out, I will continue to defend our state and federal Constitutions and North Carolinians’ fundamental freedoms. As constitutional officers, judges must respect the will of voters. My commitment to upholding the rule of law is why voters elected me to keep my seat more than 3 months ago.”

Phil Berger Sends a Panicked Message to NC's Chief Justice

 

First reporter who got this out appears to have been Bryan Anderson (whose Anderson Alerts on Substack is required reading). 

Mr. Chief Justice

Looks like Phil Berger knows just how destructive to Republican rule, going forward, and to the entire North Carolina judicial system, how utterly destructive a Paul Newby Supreme Court ruling in Jefferson Griffin's favor would be, giving him that lusted-for seat on the Court in the most cynical way. So, speaking to the press two days ago, Phil Berger sent a message to our Rumplestiltskin Chief Justice: Don't do it, you dolt! Even though his comment singled out Jefferson Griffin and not Newby, any fool can see that Berger's real concern is the naked and crazy partisanship of the little man at the top of the Court who has already said publicly that he likes Griffin's chances.

In a rare public rebuke of a fellow Republican, GOP Senate leader Phil Berger on Tuesday suggested Griffin’s effort to remove voters over clerical issues was a bridge too far.

“The equities are with the voters there,” Berger told reporters on Tuesday. “I don’t think that they had a way of knowing that that was a deficiency as far as their registration is concerned."

Question remains: Will Newby get the message? Certainly, Jefferson Griffin has already shown he's not letting up, so it falls on the conservative super-majority on the NC Supremes to save the NCGOP from itself.

 

Grounds for Recusal

 

Judge Tamara Barringer

NC Supreme Court Chief Justice Paul Newby’s wife, Macon Newby, contributed $6,400 to Jefferson Griffin’s campaign in June 2023. and Griffin has described Newby as his "mentor."

Brent Barringer, Associate Justice Tamara Barringer’s husband, also gave Griffin at least $6,400 for his Supreme Court campaign, according to campaign finance records.

These people will ultimately determine who won the Supreme Court election between Griffin and Allison Riggs. They're not about to acknowledge any factors that would seem to demand recusal because of campaign contributions given in the name of their spouses.

NC Supremes Drag Allison Riggs

 

Okay, a thing happened last Wednesday at the NC Supreme Court that I kind of ignored even though the headline writers opted for calling it a defeat for Jefferson Griffin (who's been trying to purloin a Supreme Court seat for himself. Where have you been?), but the Court's refusal to grant Griffin an order to fast-track throwing out legal and legitimate votes incrementally until he can achieve the desired majority over Allison Riggs -- the Court's denial of Griffin was accompanied by a refusal to lift the stay preventing certification of the race by the State Board of Elections. The Court is throwing the case back for trial to the lower courts -- first Superior, then Court of Appeals, and thence, finally, to Paul Newby's coven of partisans for the ultimate decision: Shall we continue to have Allison Riggs on the Court, or will Jefferson Griffin succeed in undermining the democratic rule of law and eternally besmirch the Court?

In other words, maybe they can just keep Riggs off by dragging out the process for years.

Jeffrey Billman published in The Assembly an intense unpacking of the stuff that the judges wrote in their unanimous decision to deny Griffin's fast-track scheme -- all five Republican judges and Anita Earls, the lone Democrat, wrote their own opinions. Earls dissented on the refusal to lift the stay on declaring a winner. Earls, who gets under Newby's skin faster than any chigger, points out in her opinion that under state law (Billings includes a link) leaving a temporary stay in place for a trial indicates that “the petitioner is likely to prevail” -- kind of a dead give-away that her Republican colleagues are sending a message to the lower courts of their desired outcome.

Newby flashed his conspiratorial backside in his concurring opinion, according to Billings, called it “highly unusual” that Griffin was ahead on election night but fell behind when all the votes were counted. "It’s unclear whether Newby meant to raise the possibility of fraud or vote-counting improprieties—which Griffin has not alleged—but it’s not unusual for late absentee and provisional ballots to shift leads in close elections."

Newby’s comments “show a complete lack of understanding of how elections are conducted,” said Gerry Cohen, a Wake County Board of Elections member and former General Assembly special counsel. [Cohen is the authority on NC election law, since he helped draft most of it.]

Billings draws attention to why last Wednesday's decision doesn't look like any kind of victory for Riggs:

Newby also chided Griffin’s critics for accusing him of trying to “disenfranchise” voters. He called Griffin’s complaints “valid” and said they “may affect the outcome of the election.” Barringer and Justice Phil Berger Jr. cosigned.

That's some kind of a signal, no?

But wait! Parallel but separate legal action is also proceeding in the Federal system. The 4th Circuit Court of Appeals has been petitioned by Riggs to take the case away from the state on the basis that Griffin's request would retroactively disenfranchise voters and thereby "violate numerous federal civil rights laws,” including the Voting Rights Act of 1965 and the National Voter Registration Act of 1993. Oral arguments in this case begin tomorrow.

The Real, Fulminating Threat to Democracy in NC

 

Paul Newby,
"His Benevolence"

In Sunday's News&Observer, UNC Law School Professor Gene Nichol had a stark round-up of the "Six Factors That Brought Down NC Democracy in 2024." Nichol lays much of the blame for the precarious condition of democracy in North Carolina at the doorstep of the state Supreme Court, "transformed into the most partisan appellate tribunal in the United States" under the ascendancy of Chief Justice Paul Newby (a.k.a., "The Smiling Eff You") who thinks the General Assembly under Republican super-majorities is the “sacrosanct fulfillment of the people’s will.” In other words, the hand of the Almighty has bestowed its blessings on Phil Berger, and we all must do as he wishes.

Nichol:

Broadly speaking, state separation of powers issues are left in the hands of state supreme courts, unreviewable by the federal judiciary. So when the state Supreme Court says the General Assembly can do whatever it wants — including cheating on redistricting and overriding the results of elections through sore loser laws — regardless of the clear limits of the North Carolina constitution, the people of the state have no legal or effective political recourse. Such are the wages of a Supreme Court refusing to carry out its prescribed duty of independent judicial review.

The other four partisan Republicans who follow the leadership of Paul Newby:

1. Phil Berger Jr., "Baby Berger," whose very presence on the Court owes much to the power of his big daddy, Phil Senior. Junior is a "nepo baby." We wrote about his rise in January 2019. His term isn't up until 2028.

2. Tamara Barringer, the former Republican state senator until she was defeated in the 2018 Blue Wave by Democrat Sam Searcy, ran for and won her associate justice seat in 2020. She's next up for reelection in 2028.

3. Richard Dietz, whose term runs out in 2030, was originally appointed to the Court of Appeals in 2014 by Gov. Pat McCrory. 

4. Trey Allen, who clerked for Paul Newby (a.k.a., "Rumpelstiltskin"), was elected in 2022, so he's safe until 2030. 

We have a lot of years of suffering ahead of us before any potential break in the clouds.

Rumplestiltskin

Chief Justice Paul Newby's Flag Merely Confirms What We Already Knew About Him

Paul Newby, Chief Justice of the NC Supreme Court, waited just hours (it seems) after the 2022 elections gave him his conservative majority to reverse the Court's previous ruling that gerrymandering of legislative districts violates the equal rights of citizens. Newby's newspeak: It's perfectly all right for the Republican majority in the General Assembly to stack the deck however it damn well pleases. Short version: Newby is an enemy of democracy.

So it came as no great surprise that the same Christian nationalist/MAGA escutcheon, the "Appeal to Heaven” or Pine Tree flag, that got Samuel Alito into hot water, was flying over Newby's beach property in Cartaret County (a house technically owned by Newby's wife, so there's another "my wife did it" excuse in the making) as recently as May 23rd.

Picture and story, NewsAndObserver, June 27

Newby told the N&O in a statement that he was given the flag as a gift before Jan. 6, 2021, and flies it during national holidays such as Memorial Day. 

“Until recently, we had no idea of the association of the ‘An Appeal to Heaven’ flag with anything other than its actual history — a history that reminds us to pray for our nation,” he said. “At no point did we intend the display of the flag to be a political statement, only a statement of our faith.”

Uh-huh. So Newby -- wholly innocent of political intent -- runs a flag up his pole, the sign-of-the-times meaning of which is totally mysterious to him. May 23rd, just incidentally, is the day after the New York Times ran its story on Alito's flag, which became the news of the nation.

And please forget any enforcement of judicial ethics in Newby's case. The Judicial Standards Commission is totally under Newby's thumb. He appoints six of the 14 members himself, and another eight are appointed by Berger/Moore in the General Assembly. 

Judge Bob Orr to the NC Supreme Court: "Be Fair!"

 

Former state Supreme Court Justice Bob Orr (and former registered Republican) filed suit Wednesday (Jan. 31) in Wake Superior Court aimed at taking down gerrymandering in North Carolina by way of a Supreme Court finding that fair elections are also a constitutional right even though fair doesn't appear in the language of the NC Constitution but only the adjectives free and frequent. “If the citizens of North Carolina are guaranteed by their State Constitution the right to ‘frequent’ and ‘free’ elections," Orr's lawsuit argues, "then surely the Constitution guarantees them the right to ‘fair’ elections. After all, what good are ‘frequent’ elections if those elections are not ‘fair’? Likewise, what good are ‘free’ elections if those elections are not ‘fair’?” 

Orr filed the suit on behalf of seven Democrats and two Unaffiliated voters.

In particular, the suit mentions specific Congressional and NC General Assembly seats as egregiously illustrative of the meanness (sometimes approaching cruelty) behind partisan gerrymandering, namely CD 6, CD 13, CD 14, SD 7 and HD 105, "as well as other districts" (like HD 67, HD 103, HD 10, HD 13) -- redistricting maps showing outrageous unfairness, all appended to the complaint.

Orr seems to be going straight for the Paul Newby gullet. Newby as chief of a 5-2 Republican majority took inordinate pride in ruling not so long ago that the previous finding by a Democratic Supreme Court that extreme partisan gerrymandering is both recognizable and subject to judicial re-do -- he said that was wrongly decided, and in fact, he and his fellow Republican majority ruled that partisan gerrymandering is not only A-OK but venerable in its historical presence in state government.

Guaranteed, Paul Newby is not gonna see the logic of saying "free" and "frequent" also implies "fair." He'll see no such thing, and his fellow Republicans also, who can't admit that the base of their power is situated in the highly partisan districts drawn by computer desk jockeys who know how to manipulate population blocks.

Who Is Bob Orr?
Aside from having served as the appointed District Attorney for Watauga County and the rest of the 24th Prosecutorial District in 2014 (to finish the term of DA Jerry Wilson), Orr had already built an impressive record of service. He was appointed to the NC Court of Appeals by Republican Governor Jim Martin in 1986. He won election to the NC Supreme Court in 1994 and served there for ten years. He ran for governor in the Republican primary of 2008, losing to Pat McCrory. In 2016, he was a John Kasich delegate to the Republican National Convention in Cleveland, leaving the convention early before Trump's formal coronation but not before commenting to a WRAL reporter that Donald Trump was “singularly unqualified to lead this country.” In fact, Orr said, "Trump is a danger to the country."

NOTE

CD 6, CD 13, and CD 14 all elected Democrats to Congress in 2022 -- Kathy Manning, Wiley Nickel, and Jeff Jackson -- but after the late Fall Republican gerrymandering of those districts, all three Democrats declined to run again because of impossible odds. It's now a foregone conclusion that these will be Republican seats after November. SD 7 is the outrageous case that carved Black neighborhoods out of Wilmington and shoving them across the Cape Fear River to be part of a very rural Senate district dominated by white Republicans. HD 105 illustrates the bizarre favors the General Assembly attempted to give the recent turncoat Tricia Cotham, whose previous district map was heavily Democratic and now leans Republican.

Some Justice For Earls

 

“The new members of our court very much see themselves as a conservative bloc. They talk about themselves as ‘the conservatives.’ Their allegiance is to their ideology, not to the institution.”

--Anita Earls, Assoc. Justice, NC Supreme Court

Not Paul Newby but the
authoritarian Savonarola

For saying such things, Justice Anita Earls has been put under investigation -- twice -- for impugning the integrity of the Supreme Court of North Carolina. The leader of "the conservatives," Chief Justice and Savonarola impersonator Paul Newby has had it in for her (a liberal who identifies as Black), and he led the court in promptly reversing decisions that Earl had a big hand in writing about ballot access and partisan gerrymandering -- after "the conservatives" took full power in 2020 and 2022.  In one part of an interview that Justice Earls gave Law 360, she said Newby had quietly disbanded the court’s Commission on Fairness and Equity and eliminated implicit bias training for judges. Newby didn't like it that she pointed that out, though he didn't dispute the accuracy. Even casual observers might note Newby's rigid plantation mind-set against an outspoken woman on the Court who founded the Southern Coalition for Social Justice in 2007, and whose civil rights advocacy is pure poison for a pious authoritarian. 

Newby had the Judicial Standards Commission under his thumb and could influence retaliation against Earls by threatening sanctions for "her mouth" (though Newby himself has spouted off his biases at more than one conservative rally). But, standby O brethren for a remarkable development -- Newby and the Standards Commission have pulled back their horns, stopped the investigation into Earls's freedom of speech, and dismissed the complaint against her.

Earls responded to this development by dropping the Federal lawsuit she filed six months ago to stop the Standards Commission's harassment. She had asked for an immediate injunction against the investigation as an infringement of her free speech rights, but a Federal judge denied the injunction. Before yesterday, the lawsuit was still pending. The capitulation of Newby's hench-people suggests something approaching a "settlement" between the two sides. And Earls was not the one to flinch.

Obliged to Michael Hewlett and The Assembly for the details. Subscribe to The Assembly!

Cooper v. Berger Being Heard Today

The three-judge panel appointed by NC Supreme Court Chief Justice Paul Newby to hear Governor Roy Cooper's "facial" constitutional challenge of S749 (e.g., "On the face of it, this law violates the constitution of North Carolina"). S749 was the sweeping bill which completely reorganized the administration of elections in North Carolina, ultimately enacted over Cooper's veto. Cooper is claiming the bill is a constitutional breach of the separation of powers and ultimately aims at nothing less than reducing drastically the access to early voting in some (many?) counties because 4-4 county boards of election are almost guaranteed to deadlock, and the existing law sez that when there's no majority on a 4-4 board, then all early voting in that county reverts to the local Board of Elections office and no place else (O my brethren!). The case was scheduled for a first hearing this morning in the Wake County Courthouse.

Carolina Journal reported the names and affiliations of the three judges that Newby picked: Superior Court Judges Edwin Wilson, Lori Hamilton, and Andrew Womble. Wilson is the lone Democrat, appointed by Roy Cooper. Hamilton and Womble are Republicans, and I suspect Newby knows their temperament (if not their temperature) and chose accordingly.

What are the odds for Cooper? Considering that the end-all and be-all of this case, no matter what the 3-judge panel decides, will be Paul Newby Hisownself and the current other four member of the Supreme Court clatch, I ain't holding my breath. The Republicans have bent themselves silly to constantly grab more power, and where they can't just outright bar certain people from voting, they'll make the very administration of voting -- especially early voting -- completely broken. It's American carnage all right.

UPDATE

You could have knocked me over with a dandelion head, but the 3-judge panel ruled unanimously that they sure nuf would like to have a trial over whether S749 violates Governor Cooper's constitutional rights (separation of powers), and in the blessed meantime, here's a temporary injunction on implementation of replacing all boards of elections in every county with boards made up of equal numbers of Republicans and Democrats (the newest Republican scheme to put a curse on voting). With the injunction, the current administration of elections in North Carolina stays the same, which tilts all boards one vote toward the Party of the Governor. Looks like the 3-2 Democratic majority on county boards will remain in place through next March's primary.

We Won! (But We Still Lose)

 

Paul Newby

The people of North Carolina won in Moore v. Harper. The Supreme Court ruled 6-3 that a state legislature can't do anything it dreams up about elections and voting without facing judicial review. But our continuing problem in North Carolina is more basic than the ability to have judicial review of gerrymandering, because we have a state Supreme Court that's more permissive than hippy parents in the 1960s. Our Supremes have already signaled that it has no interest in reviewing -- and heavens no! Never forbidding -- whatever Berger/Moore wants to do with gerrymandering and ballot access.

Chief Justice Paul Newby leads a solid 5-2 partisan gang on the NC Supreme Court. In April they proved their allegiance by reversing an earlier decision that found partisan gerrymandering illegal in North Carolina. No, no, no, Newby and his pals said. Partisan gerrymandering is perfectly legal, and we really regret our previous colleagues' busybody interference in the business of the General Assembly.

So we're all trapped and waiting, like teenagers in a cabin in the woods in the last reel of a slasher flick, waiting for the next round of redistricting of all congressional and General Assembly seats that the Republicans have promised we'll see in September ... or maybe October ... or at the latest November, because candidates will have to file to run in those new districts by December 4, 2023. What are the odds that Republicans will wait to the last minute to let Democrats know the full extent of their disenfranchisement, while favored Republican candidates will be very much in the know?

This is only part of the reason I trust the gods will eventually punish Berger/Moore, because nothing attracts divine retribution like arrogance.

GOP Asks NC Supreme Court To Go Ahead and Declare Its Partisanship

 

The eyes of Paul Newby

Just a month ago, with Democrats still a slim majority, the NC Supreme Court in Harper v. Hall ruled the redistricting of state Senate districts unconstitutional, and in Holmes v. Moore, the same court ruled the state’s 2018 photo voter identification law unconstitutional.

Following hard on November's elections which shifted the court's makeup to a 5-2 Republican majority (new justices Trey Allen and Richard Dietz were sworn in on Jan. 1), GOP leaders in the General Assembly have petitioned the new court to expose and flex its new partisan advantage by reconsidering the decisions in both Harper v. Hall and Holmes v. Moore.

It's what we'd call a command performance. "Show us you love us! Give us a sign that we're now free to do anything and everything that our heart desires -- small and shriveled as it is."

My prediction: the Paul Newby Republican majority will do as requested, and this will only be the beginning of regression, repression, and a growing lack of interest in the rights of North Carolina voters.

Hoo-rah.

The Newby Dissent

To say that NC Supreme Court Chief Justice Paul Newby is pissed about Harper v. Hall would be a considerable understatement. He did a Rumpelstiltskin stomping dance about it in his dissent (which begins on page 10), to which fellow Republican associate justices Phil Berger Jr. and Tamara Barringer signed on. But it's useful for partisans to read, because it's a roadmap to how the GOP and their pals in various 501.c.4s and Super PACs will be campaigning this fall to take over the Supreme Court of North Carolina for the betterment of regressive politicians everywhere.

NEWBY dissenting. I dissent from the decision of the Court which violates separation of powers by effectively placing responsibility for redistricting with the judicial branch, not the legislative branch as expressly provided in our constitution. As predicted by the Supreme Court of the United States, this Courts decision results in an “unprecedented expansion of judicial power.”

I'm struck by the yawning gap between his reality and ours regarding "the rights of others":

Recognizing special rights to one favored person or group invariably diminishes the rights of others.

[What? Does he mean that the order in Harper v. Hall has absolutely trampled on the rights of Berger Moore to create authoritarian government? The right to punish political opponents?]

Newby says a citizen, any citizen or group of critizens, can't challenge partisan gerrymandering through the courts. Simply can't. "[A] claim for partisan gerrymandering presents a nonjusticiable political question." Period. You cannot seek redress from being subjected, say, to seeing your county cut up and parceled out to dilute its political strength. Newby's Valentine message to "Dear Citizens," particularly of the Democratic stripe: You're shit outta luck. 

Which is why the opinion in Corum v. University of North Carolina was so important for the Court's majority. Corum found that any citizen had standing to bring a constitutional claim against a "sovereign actor," despite no specific statute authorizing it. Newby both acknowledges Corum and blows right past its logic to sneer at a supposed "protected class":

[The Court's Democratic majority] seeks to support [statewide political proportionality in redistricting] with various provisions of our Declaration of Rights that are designed to protect individual and personal rights. Corum v. Univ. of N.C., 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992). In doing so, it magically transforms the protection of individual rights into the creation of a protected class for members of a political party, subjecting a redistricting plan to strict scrutiny review.

The people's interests, the people's rights. Newby throws those terms around like rose petals over a grave: "[L]egislators, as opposed to judges, are in the best position to address the people's interest." 

But by last count, the State Board of Elections reports 2,494,836 registered Democrats in North Carolina, compared to 2,184,696 registered Republicans. It's telling that "the people" for Newby means an actual minority, while the majority are nothing more than a grasping special interest willing to subvert the rule of law, not protect their constitutional rights.

It's All On the Line in Raleigh

 

Chief Justice Paul Newby

I couldn't watch the gerrymandering arguments before the state's Supreme Court yesterday. I mean, I couldn't bear to watch. I knew it was happening and I had the URL to tune in, but instead I started reading a Margaret Atwood novel (Alias Grace) which I quickly realized had become a movie which I've also seen. But the writing! Atwood can skewer human frailty like a striking snake. She describes a woman's face as resembling a pine plank.

But the gerrymandering. Nothing less than political survival -- and hence, survival itself -- hinges on what comes out of that hearing yesterday. Republicans drew new Congressional and General Assembly maps that even they admit constitute an extinction-level event for Democratic office-holders (let alone Democratic values), meant to keep the GOP not only in charge of the General Assembly but overwhelmingly in charge, able to override any governor's veto. And bonus points! The US Congressional maps will help end the hated reign of Nancy Pelosi in the US House.

But do the maps cross the line? And what is the "line." And can you, as a Court, or anyone else fix the line so that we know when someone's crossed it? That's the main argument by the lawyers for the defendants -- Phil Berger and Tim Moore and their lieutenants in charge of NC House and Senate redistricting committees. It's a cat's nature to claw, they say, and you can't adjudicate it, so wear gloves and deal with your own scratches. Cry more, Libs.

For their part, the libs base everything on the NC Constitution's one line, "All elections shall be free and open," with gerrymandering constituting an insult to the word free. If every legislative seat is drawn to foretell and guarantee a fixed outcome, then an election's results are predetermined, and that ain't freedom.

One of plaintiffs' attorneys, Zach Schauf, called gerrymandering "the systematic destruction of majority rule. And that, by the way, is also the test we think this court and the General Assembly should apply going forward: That the party that wins more votes should have at least a fighting chance to win most of the seats” (Will Doran's reporting).

At which argument Republican Chief Justice Paul Newby said the state's constitution guarantees a free election, not a fair one. Those words came from the currently highest level of North Carolina jurisprudence, folks. I read it as a confession.

Cheri Beasley Is Now Winning the Chief Justice Race

 

Sitting Chief Justice Cheri Beasley is now leading Rumpelstiltskin-in-a-former-life Paul Newby for the privilege of running the court. The vote is currently 2,685,809 (Beasley) v. 2,684,691 (Newby), a lead of 1,118 votes.

The deadline for Absentee-by-Mail ballots was yesterday, and the counting of those votes into last night, along with several thousand provisionals across the state, account for Beasley's sudden reversal of fortune. She was trailing on election night, and some of us thought that she had sure nuf lost, an eventuality that hurt as much as the Cal Cunningham trainwreck.

Newby, currently an associate justice on the NC Supreme Court, is known for extreme partisan views mixed with dominionist religiosity (and possibly the ability to spin gold out of straw).

If that thousand-vote lead holds, Beasley will be presiding over a 5-2 Democratic majority on the state's high court. Phil Berger Jr., whose main talent appears to be upward mobility, beat Lucy Inman for Newby's open seat by 69,417 votes (1.3%), and Republican Tamara Barringer beat Democrat incumbent Mark Davis by almost 128,000 (2.4%). All the Democratic candidates for the Court of Appeals lost to Republicans, but all those races were close. The Republicans generally won with a 2.5% edge. But the Court of Appeals is going to be a tough venue for certain kinds of justice for the foreseeable future.

Justice Paul Newby Goes Full Partisan

Justice Paul Newby

We recently compared NC Supreme Court Associate Justice Paul Newby to disgraced Alabama Chief Justice Roy Moore. How rude! But it's actually worse, as I've seen more of the speech Newby made to some Wake County Republicans a couple of weeks ago. I'm indebted here to Matt Naham at Law & Crime:

The only registered Republican on the state Supreme Court in North Carolina said two weekends ago in a roughly nine-minute speech “If we [Americans] are as bad as the other side says we are, I will buy you a ticket to leave. I mean, just leave.”

In the speech, Justice Paul Newby – reportedly the longest-serving member of the court – asked his audience right out of the gate to “Imagine seven AOC’s on the state Supreme Court.” This was, of course, a reference to Rep. Alexandria Ocasio-Cortez (D-N.Y.), but it was also a reference to the other members of the state Supreme Court, himself excluded — “Well folks, we’ve got six. It’s six to one. As my daughter Sarah said, I am the last man standing.”

What was the purpose of this speech? According to local news outlet WRAL, which first reported on Newby’s speech, Newby was “upset when Gov. Roy Cooper appointed [Chief Justice Cheri] Beasley to the top spot on the court to fill a vacancy earlier this year. He’s running against her for the seat next year in one of three Supreme Court races on the ballot, all of which are likely to be well-funded partisan affairs.”

Newby began his speech by asking a question and answering it: “Sue till you’re blue. Sue till you’re blue. What do you think the most dangerous branch of government is? The judicial branch is the correct answer.”

From here, Newby said that big spending on the state Supreme Court was a strategy that could be traced to former President Barack Obama and “those who were part of his inner circle to stack the state Supreme Court”:

"In 2018, the left put $1.5 million to get their AOC person on the court. Is this unique in North Carolina? No. According to a recent article in the Washington Times, this has been a long term strategy by Obama and those who were part of his inner circle to stack the state Supreme Court for that day when the U.S. Supreme Court would say, well, that is not a federal issue, we’ll give it back to the states."

According to NC Policy Watch, the “AOC person” he was referring to was Justice Anita Earls. The same article said that “State judicial code makes discipline unlikely for Justice Paul Newby.”

Newby went on to say, however, that something could be done about stacking of the courts:

"Well one is, we can have some really good candidates. Now there will be three seats open on the North Carolina Supreme Court, OK. I’m running for Chief Justice. The Governor had an opportunity to do the right thing and appoint the senior associate that’s been done pretty much throughout history — but this will shock you, I hope you’re sitting down, those of you that can’t find a seat, get ready for this — this Governor that we have now is a political preacher who does what politics mandates over what is right for the state.

"We the people can change that. We can elect the senior associate [me, Paul Newby] for chief justice. Tamara Barringer, Phil Berger Jr. will be running for the Supreme Court — we can go to 3-4 or we could be 0-7. This will be November 2020."

Newby eventually appealed to the Abraham Lincoln’s Gettysburg Address before saying people coming to America “illegally or any other way” are doing so to escape socialist countries:

"I want you to think about President Lincoln’s closing prayer in his Gettysburg address. He says that this nation under God might have a new birth of freedom, and that a government of the people, by the people for the people would not perish from the face of the earth. Why are people trying to get into this country — let’s use common sense — why are people trying to get into this country illegally or any other way? Because it is freedom and liberty, folks. And what countries are they leaving? Socialism. I’m sorry, we may not be perfect, but we’re the best nation in the world and why don’t we just use common sense?

"If we’re as bad as the other side says we are, I will buy you a ticket to leave. I mean, just leave. You’ve got freedom here in America to leave. We don’t build laws to keep you in. We ought to have a wall to keep you out if you’re trying to get here illegally. That’s wrong, OK? So that’s my prayer."

As Judge Newby was speaking these words the day before Twitterman tweeted the infamous "go back where you came from" series of rants against members of the US Congress and several days before the crowd at the rally in Greenville turned the sentiment into a racist chant, it appears that Judge Newby was exceptionally prescient in catching the Trumpian wave before it crested.

As Rob Schofield pointed out yesterday, Judge Newby not only violated a basic standard of decency, continuing to bash a female member of Congress who is already under death threats, but he also appeared to violate a canon of judicial conduct: "A judge should … conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” By impugning the integrity of his fellow justices and implying they are "socialists" ("seven AOCs"), Newby was hardly promoting "public confidence in the integrity and impartiality of the judiciary."

We Have Our Own Roy Moore in North Carolina

Judge Paul Newby,
a partisan Republican

Some Supreme Court justices in some Southern states swing high and swing wide. Roy Moore as chief justice of the Alabama Supremes decided he was God's gift, defied a federal court's order to remove a monument to the Ten Commandments in the state's judiciary building that he placed there because God told him to and then defied the US Supreme Court over same-sex marriage. Because when you have the One True Truth, you don't have to follow the law.

He was legally removed from the Supreme Court of Alabama. He's been in a political snit ever since, running (unsuccessfully) in a US Senate special election last year. He says he'll run again in 2020. He'll run until God Almighty puts him where he knows he deserves to be, in the marble halls of the US Senate.

North Carolina Associate Justice of the Supreme Court Paul Newby is also in a snit ever since Governor Roy Cooper did not appoint him Chief Justice, appointing a black woman in Cheri Beasley instead. Now, through the hilariously inept machinations of Phil Berger and the Republican majority in the General Assembly, Newby is the last remaining Republican on the seven-member state Supreme Court, and boy, is he ever pissed.

He made a campaign speech last Saturday in which he dissed all six of his fellow justices, comparing them to the current Democratic demon-du-jour, Alexandria Ocasio-Cortez (AOC), especially Anita Earls who was elected to the court in last fall's campaign. "Imagine seven 'AOCs' on the state Supreme Court," Newby told the Republican crowd. "Well, folks, we got six," he said to laughs. "It's six to one."

So Newby is running against Chief Justice Cheri Beasley in next year's election. He has the One True Truth behind him, and all those brown women are not going to stop him from bringing Republican partisanship to the high court.

Get This Partisan Embarrassment Off the NC Supreme Court

Justice Paul Newby

Yesterday, NC Supreme Court Associate Justice Paul Newby (who's made a serial spectacle* of himself since 2012--see below) pitched an injudicious fit that he wasn't the one chosen by Governor Cooper to become Chief Justice of the Court.

* Like his 1st Supreme Court election in 2004, running as the only NC GOP-endorsed candidate at a time when judicial elections in NC were officially non-partisan 

* Like showing up in 2005 at a rally against gay marriage, not the first or only time Newby has shown his bias on issues likely to come before him on the bench 

* Like getting reelected in a tough 2012 contest against Sam Ervin IV on the strength of big-bucks dark money coming from Big Tobacco, Big Insurance, and "a Washington-based group described as providing direct technical assistance to the North Carolina Republicans who drafted the [new and highly gerrymandered] legislative maps" 

* Like failing to recuse himself from sitting in judgment on Republican gerrymandering early in 2013, despite receiving over $1 million in TV advertising from a dark-money group that supported the gerrymandering

Now about the accusations Newby made yesterday...

A. "...Governor Cooper decided to place raw partisan politics over a non-partisan judiciary..."
Funny, coming from the most visibly partisan justice on the state's Supreme Court! And Newby appears to have forgotten that it was his guys in the NC General Assembly who decided to change state law and make all judicial elections partisan.

B. "...by refusing to honor the time-tested tradition of naming the Senior Associate Justice as Chief Justice..."Funny, since there is no such tradition. In 1986 Republican Governor Jim Martin appointed fellow Republican Rhoda Billings to be Chief Justice despite her having served only a year on the court. 

C. "...The Governor's decision further erodes public trust and confidence in a fair judiciary, free from partisan manipulation..."
"Partisan manipulation"? When Democratic Chief Justice Sarah Parker was forced into mandatory retirement in 2014, Republican Governor Pat McCrory appointed Republican Associate Justice Mark Martin to her seat. That's the tradition. A tradition pursued like a July chicken after a junebug by the Republican super-majority in the NC General Assembly ... attempting to manipulate the courts through "retention elections," judicial gerrymandering, seizing the appointment power for themselves, and engineering an entire election for the son of the President Pro-Tem of the NC Senate.

Newby promises to be on the 2020 North Carolina statewide ballot, running (yep!) to be Chief Justice of the Supreme Court. The dude is a veritable cathedral of disqualification.

Gov. Cooper Makes History with Supreme Court Appointee

Justice Beasley with Gov. Cooper
this afternoon at the Governor's mansion

Governor Roy Cooper this afternoon appointed Associate Justice Cheri Beasley as the first black woman to head the state's Supreme Court, replacing Republican Mark Martin who is stepping down.

Beasley has been a judge for the last 20 years and an associate justice on the Supreme Court since 2012.

Beasley's associate justice seat on the court will now be open, and Gov. Cooper will also be able to appoint a replacement for her. The only Republican left on the high court, Justice Paul Newby, was miffed that Cooper did not elevate him to the chief justice position because he has the greatest seniority. Newby had already announced weeks ago that he would be on the ballot in 2020 for the chief justice seat. He'll likely be opposed by Cheri Beasley, who will have to run in her own right for the seat next year.

Barringer to Berger Jr.: "Not So Fast There, Scooter!"

Sen. Tamara Barringer, 2016, calling for
repeal of HB2 ("bathroom bill")
WRAL photo

Musical Chairs on NC's Highest Court
Republican Chief Justice Mark Martin announced he was stepping down this month, and Governor Cooper gets to appoint his replacement (who'll have to run for the seat in 2020). Republican Associate Justice Paul Newby immediately announced he would be giving up the Newby seat to run for Chief Justice next year. Soon after, Republican Phil Berger Jr. announced he would run for the Newby seat (as did Democratic Court of Appeals Judge Lucy Inman).

Yesterday former NC Senator Tamara Barringer announced she will also be running in 2020 for the Newby seat.

My first thought: "D'oh! Tamara Barringer saying (in effect) to Phil Berger Jr., 'I don't care who your daddy is! I'm running for the same thing you think you're entitled to!' "

Interesting, since, as a state senator, Barringer was always under Father Berger's thumb, though she's been capable of a streak of independence (see the photo).

Contrary to what I initially thought (and hattip to Gerry Cohen), there will be judicial primaries in North Carolina in 2020. The elimination of primaries for partisan judge races applied only to 2018, which was one of those Berger/Moore schemes supposed to sow chaos among Democrats. Didn't work that way, and we now have a 5-2 Democratic majority on the Supreme Court likely to move to 6-1 when Cooper appoints Martin's replacement.

If there's a Berger Jr. - Barringer primary, that'll be interesting to watch. If. Many other factors could change that: If Cooper appoints one of the sitting Democratic justices as Chief, that'll open another named seat, and Barringer could elect to run for that rather than going head to head with Berger.

Barringer had been a four-term state senator, representing the Wake County District 17, until last fall when Democrat Sam Searcy flipped the seat. Wake County has been trending away from hardline conservatism, but in announcing yesterday, Barringer sounded pretty hardcore conservative:

“In the last week, I received many calls encouraging me to run for the Supreme Court,” Barringer said in a press release Tuesday. “All of you know my love for the law and the importance of maintaining a strict Constitutional interpretation of the laws passed by the General Assembly. It is imperative that we have justices who refrain from legislating from the bench” (emphasis added).

But in 2016, she was the first Republican lawmaker to call for the "substantial and immediate" repeal of House Bill 2 due to the measure's "unintended consequences" (WRAL).