Lawmakers say they have no plans to expand NC Supreme Court

Posted November 18, 2016

State Supreme Court to hear redistricting arguments

— Top North Carolina lawmakers insist they have no plans to expand the state's Supreme Court by two seats in an effort to reclaim a majority for conservative justices, never mind a drumbeat of speculation around Raleigh and beyond.

"We have never really talked about it at all," said Rep. David Lewis, R-Harnett, the House Rules Committee chairman. "There has been no talk that I'm aware of among leadership about doing that."

Senate President Pro Tempore Phil Berger reluctantly addressed what liberal politicos and news outlets have described as a "court packing" scheme. The purported plan, which ground through the Raleigh rumor mill in the 10 days since the Nov. 8 election, would reverse the 4-3 majority Democrats will soon enjoy on the court following Wake County Superior Court Judge Michael Morgan's defeat of incumbent Justice Bob Edmunds.

Members of the General Assembly say they expect to return to Raleigh in December to deal with emergency funding needs resulting from Hurricane Matthew's flood damage and wildfires in the west. That pending return has fueled speculation that lawmakers also will use the time to score a last-minute political coup with both Edmunds and Republican Gov. Pat McCrory likely leaving office.

"While we do not make a habit of commenting on rumors, there have been no caucus discussions about this issue," Berger, R-Rockingham, said Thursday.

The Republican Senate caucus is currently comprised of the 34 GOP members of the Senate who typically talk over potentially divisive or politically volatile legislation before it is formally or proposed.

While those declarations by Berger, Lewis and others don't completely preclude action regarding the court – lawmakers do sometimes hide their intentions with regard to legislation – they make any such move before the end of this year costly in terms of personal and institutional credibility. Also, their statements are consistent with interviews both on the record and off with Republican members of the House and the Senate as well as legislative staff members.

"I think it's idle chatter," said Rep. Mitchell Setzer, R-Catawba. "I haven't heard anything about it from any official channel."

Setzer and other lawmakers say they've been getting emails from constituents about the matter driven by online opinion writers, but they have not exchanged any serious – or even informal – policy proposals.

House Speaker Tim Moore was not available Thursday or Friday, according to a spokesman, and has typically declined to speak on the rumored legislation when asked by other outlets.

The seven-member Supreme Court does not typically function as a partisan group, and justices appear on the ballot without Republican or Democratic labels. However, the party affiliations of court candidates are widely known by political activists, and state parties almost always back a candidate who hails from their partisan side. In recent years, fights over legislative and congressional redistricting have led to millions of dollars in spending in Supreme Court contests.

Requests for on-the-record comment from McCrory's official office were not returned Friday. However, there is no evidence the governor has requested such a move.

Sen. Mike Woodard, D-Durham, said he has talked to no Republican colleague who believes lawmakers will take up such a bill. Many of them, he said, believe it would be a horrible idea.

"If they introduced it and passed it, to me, that is the nuclear option," said Woodard said. "That would be just so over the top I can't find the word for it."

Path to court expansion not well laid out

While there are currently seven justices on the court, the state constitution allows the General Assembly to expand that number to nine. Before the Nov. 8 election, Republicans had a 4-3 majority. Morgan's victory means the court will flip in terms of partisan influence, although the lion's share of court decisions are unanimous or nearly so.

In addition to Edmunds, McCrory appears to have lost his re-election bid, although that result is still in flux due to disputes involving both absentee and provisional ballots. If McCrory's loss sticks, he will leave office in January. A last-minute court expansion would give him a chance to put a Republican stamp on the court before the GOP surrenders the Executive Mansion to Roy Cooper, a Democrat.

But doing so would likely be seen as reversing, or at least diluting, the outcome of an election, something that both outside observers and lawmakers say would be fraught with the potential for voter backlash.

"I think the political optics of it would be tough to overcome," Lewis said.

In addition to the word-of-mouth rumor mill, the story has filtered through numerous online channels. A blogpost by the conservative-leaning John Locke Foundation caught attention early on. The idea also got talked up by the state's editorial pages, including Capitol Broadcasting's and the Charlotte Observer's. While a handful of non-opinion news reports have cited the rumor, none has quoted a elected lawmakers as saying anything other than it hasn't been discussed. But that hasn't kept the idea from being amplified by writers for liberal publications. More recently, lawmakers have begun to outright deny the reports related to possible court expansion.

"If they attempt this, I want to make it clear, we have already set in motion to turn our lawyers loose...to challenge this power grab," the Rev. William Barber, head of the North Carolina Conference of the NAACP, said during a news conference Friday afternoon. "Enough is enough."

Despite the strong public reaction, lawmakers say they don't have any plans to act.

"I do not have a sense that there are wheels turning on this subject," said Rep. Chuck McGrady, R-Henderson, who was cited in one news report as saying the idea had been discussed.

McGrady said those "discussions" took the form of the typical gossip swapping that comes before and after a business meeting of the House Republican caucus. But he and others who attended the meeting say it was never discussed during the formal part of the meeting or put forward by anyone who had the ability to push such a proposal forward.

"No, I haven't heard discussion from anybody in leadership laying out an agenda or even having an agenda in that regard," McGrady said. "Yes, there is constant chatter among people who don't know what they're talking about."

He added that, more than anything else, social media and email from policy groups are driving the story: "Some groups of people are trying to make a mountain out of a molehill."

Despite GOP denials, Democrats and liberal advocacy groups have seized on the opportunity to raise money and motivate a base dispirited by outcomes in the presidential and other elections.

In the meantime, conservatives point out that, in 2000, Democratic lawmakers expanded the Court of Appeals to allow outgoing Democratic Gov. Jim Hunt to appoint three new members when faced with the possibility that voters could elect a slate of new conservative members. The 15-member Court of Appeals rarely sits as a group, but rather hears cases in three-member panels.


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