Supreme Court candidates trade jabs on experience as money waits in the wings

Voters won't find an R or a D by Paul Newby and Sam Ervin IV's names when they make a choice for Supreme Court justice this fall.

"This is about qualifications," Newby told an audience during a debate held by the Federal Society's local chapter in Raleigh. Ervin told the same group, "I do not believe a judge should be a Republican judge, a Democratic judge or any other kind of judge."

But political operatives and legal experts say the race is being watched closely by both parties and expect that an infusion of campaign cash late in the game could help decide the race and perhaps tilt one particular court case.

Ervin is the grandson of Watergate-era U.S. Sen. Sam J. Ervin Jr., a brand name in North Carolina politics. Although he doesn't play up the connection in his campaign material, the Ervin name loudly identifies him the scion of a prominent Democratic family. Should Ervin win, he would give Democrats a majority on the court. 

In most cases, party labels wouldn't matter. But a case involving how lawmakers drew new state legislative and U.S. Congressional districts is winding its way through the court system. It's likely that whoever voters choose to sit on the Supreme Court will have a hand in deciding whether those districts are constitutional. 

"Everybody I know, that's the main reason they're interest in the race," said Gary Pearce, a longtime consultant of Democrats. Both Newby and Ervin are qualified for the post, those interviewed for this story say. 

"I would point out that it is only recently that judicial races became nonpartisan," said Tom Fetzer, a former Raleigh mayor and former chairman of the N.C. Republican Party. "And I would submit that one of the reasons they were changed to be nonpartisan was because Republicans started winning appellate court seats."

Fetzer is the head of an independent expenditure group organized under section 527 of federal tax law known as the North Carolina Judicial Coalition. His group has pledged to back Newby in the upcoming election.

"We're only looking at the Newby race," Fetzer said. 

Such 527 groups can raise and spend unlimited amounts of money without submitting to normal campaign disclosure requirements. 

"I tell people it's the most important election nobody has ever heard about," Fetzer said.

While it may be an important race, it is often a neglected one. In 2008, 4.3 million people cast votes for president. Only 3.1 million people, roughly 28 percent fewer, marked a box in that year's state Supreme Court race. In 2008, the drop-off between the U.S. Senate race at the top of the ballot and the Supreme Court vote was roughly 24 percent.

And a 2009 Elon University Poll found fewer than 1 in 10 respondents were “very familiar” with the way judges are elected. Forty-three percent said they were “not at all familiar” with how judges are chosen.

"There is a huge information gap problem," said Charles Hall of Justice at Stake, a national nonpartisan group that works to limit the influence of money on judicial elections. If someone doesn't know that they'll be electing a judge, chances are they won't be familiar with the candidate's qualifications or positions. And judicial candidates typically don't raise the kind of money needed to buy overwhelming amounts of air time or mass mailings.  

That, Hall said, leaves a gap for independent expenditure groups to fill the information void.

Fetzer said his group will support Newby because of his judicial philosophy and approach to cases. He deflected questions about redistricting, listing instead other issues that have been the subject of hard-fought partisan battles.

"You could have a completely different perception on issues of recent importance: worker's compensation reform, tort reform, medical malpractice liability," Fetzer said.

Newby has also gotten backing from Raleigh-based Civitas Action, a conservative group that has reported spending on radio ads.

Major bills dealing with those topics passed during the past two years by the General Assembly. Republicans took control of both the House and Senate for the first time in more than century in 2011 and led the charge to pass many of those bills, along with legislative redistricting plans that could give them an edge in elections for the next decade. 

The two candidates were asked directly about Fetzer's expenditure group.

Newby pointed out that it was Democrats who organized a PAC in 2006 to back an appellate court slate under the "Fair Judges" label. 

"Here you have an incumbent, who is doing a good job, (has) bipartisan support, from former chief justices, former judges, lawyers from across the state," Newby said of himself. "Why challenge that person? Why run somebody against that person?"

Newby didn't answer that question explicitly, but the implied answer was that Democrats had found an opponent because he was a Republican. 

"I don't know anything about these PACs except what I read in the paper," Newby said. But, he added, people had the right to try to influence political campaigns of all kinds.

"I'm certainly a proponent of free speech," he said.

Newby touts the endorsement of four former Supreme Court justices, two of them Democrats and two of them Republicans. He also can claim the backing of the N.C. Chamber of Commerce’s Political Action Committee, the North Carolina chapter of the National Federation of Independent Businesses, and N.C. Defense Fund, the political action committee of the North Carolina Association of Defense Attorneys.

Ervin lays claim to endorsements from the trial lawyers group know at the N.C. Advocates for Justice, the AFL-CIO, N.C. Association of Educators and the N.C. Police Benevolent Association, among others. The labor-heavy profile speaks to Ervin’s Democratic background, while the pro-business flavor of Newby’s endorsements is typical for a Republican candidate.

For his part, Ervin said he didn't have an opinion on whether PACs or outside expenditure groups were acting legally. 

"I raise the question as to what impacts such expenditures have on public perception of the impartiality of the judiciary and whether the increased politicization of these races runs a risk that citizens will lose confidence in the fairness and impartiality of the decisions that are made by the courts," he said. 

Currently, no independent expenditure group has declared that it will work on behalf of Ervin. However, multiple Democratic insiders who spoke on background for this story said the possibility of bringing outside money into the race has been discussed. 

And it's worth noting that Fetzer's group has reported no cash on hand thus far. However, such groups often get big cash infusions just before the election, after pre-election deadlines for reporting spending have passed.

"If the voters have no idea about the candidates, TV spending tends to happen in the last one or two weeks of an election," Hall said.  A big ad buy can help raise a candidate's name recognition or tear down a target.

"We've seen some other states where some of the judicial races can get really ugly when a lot of money is spent by some who have an interest before the court," said Brent Laurenz, executive director of the N.C. Center for Voter Education.

In 2011, money poured into a Wisconsin Supreme Court race when an issue about collective bargaining and public employees was heading to the state's highest court. And a famous West Virginia case saw one donor pour $3 million into a judicial race in advance of a case involving his coal company reaching the court. 

So how's a voter supposed to make a decision if they don't want to be influenced by special interest money? 

The State Board of Elections mails a pamphlet with court candidate information to all voters, Laurenz notes. Some voters may be inclined to keep incumbents or look for certain kinds of experience. And different groups, he said, will offer candidate surveys that voters can review.

In October, WRAL-TV will post the results from questionnaires sent to all appellate court candidates.