Judicial Recusal Wars 1: Trying to Change the Playing Field by Removing Justices

• In a pair of election cases before the North Carolina Supreme Court, litigants have produced a frenzy of motions to remove justices
• A voter ID case featured two failed attempts to get other justices to remove two justices involuntarily, and a redistricting case includes a call for an involuntary removal and two motions for justices to recuse themselves
• The first four calls for removal are weak

From both sides of the political aisle, there have been several recent attempts to remove North Carolina Supreme Court justices from cases they will soon hear. All relate to complaints that the justices have biases or conflicts that make it impossible to render fair, impartial judgments. In this first part of a two-part series, I will review attempts to remove four justices from important cases.

NAACP v Moore: Phil Berger Jr. and Tamara Barringer

Plaintiffs in NAACP v Moore (a voter ID case) not only attempted to remove two justices from the case, but they also took it a step further by attempting to get other justices to vote them off the case rather than leave the question of recusal up to the justices themselves, as is traditionally done. They sought to remove Justice Phil Berger Jr. because his father, President Pro Tempore of the North Carolina Senate Phil Berger Sr., is named as a defendant in the case, and Justice Tamara Barringer because she had voted for the Voter ID bill as a member of the General Assembly. Both justices are Republicans.

The idea behind a judge not adjudicating a case involving a close family member is simple: judges cannot render impartial judgment on someone with whom they have a close personal relationship. 

The test for Justice Berger’s recusal is also simple: would Phil Berger Sr. still be a defendant in NAACP v Moore if he resigned as president pro tem? If the answer is “no” (and it is), then Justice Berger has no personal stake in the outcome of the case, and there is no reason to suppose that he could not render a fair judgment in a case in which the president pro tem is a defendant. Indeed, the plaintiff’s own court filings name Sen. Berger as a defendant only “in his official capacity” as president pro tem.

The case against Barringer is even weaker. The plaintiffs in NAACP v Moore did not offer any direct precedent for removing former legislators from a case (they refer to a time when a prosecutor could not later serve as a judge on the same case). The defendants, on the other hand, were able to cite several precedents against recusing former legislators because they had supported legislation that later came to them as judges (Buell v. Mitchell):

[A] judge is not automatically disqualified from a case on the basis of having sponsored or voted upon a law in the state legislature that he is later called upon to review as a judge.

After a near constitutional crisis, the justices elected to leave the question of recusal to the individual justices, and neither Berger nor Barringer recused themselves.

Harper v Hall: Phil Berger Jr. (again) and Sam Ervin IV

The recusal fight continued into North Carolina League of Conservation Voters v Hall, a redistricting case paired with Harper v Hall that the Supreme Court will hear on February 2. Plaintiffs in that case also sought to have Justice Berger disqualified for the same reason plaintiffs tried to remove him from NAACP v Moore.

Not to be left out of the recusal game, the defendants also sought to have two justices removed from the case: Democrats Sam Ervin IV and Anita Earls.

Defendants did not seek to get other justices to remove Justice Ervin in their January 6 motion, but they did ask him to recuse himself because he is the only justice who is seeking reelection this year (page 3):

Decisions Justice Ervin makes directly about the election process could impact his own electability and creates a situation where his own impartiality may reasonably be questioned. Justice Ervin’s perfectly natural desire to continue public service as a Justice on the North Carolina Supreme Court is an interest that could be substantially affected by the outcome of this proceeding.

The motion notes that Ervin’s decisions could affect turnout and other factors in the 2022 election. However, the ship has probably sailed on the decision that would most benefit his campaign: delaying the primary from March to May. Two Republicans are running to face Ervin in the general election, and the two-month delay means two more months they are struggling against each other rather than campaigning against him. Unless a future ruling from the court includes a further delay in the primary, there will be little direct impact on Ervin’s reelection prospects from his participation in the redistricting case. Neither Berger Jr. nor Ervin IV recused themselves.

Remove Justices from Cases Only in Extraordinary Circumstances

In all these attempts at removing justices from these cases, the trump card is the presumption of competence on the part of voters who elected them. Voters, or at least a reasonable portion of them, knew about the justices’ pasts, family relationships, and political views. Justices should remove themselves from the positions voters put them in only under extraordinary circumstances. None of the motions for removal brought in these two cases rise to that level.  

A recusal motion against Justice Anita Earls was multifaceted and partially more compelling. I will review that motion in the second part of this series.