Ghost of US Senator Haunts Supreme Court Race

Sen. Thom Goolsby

October 22, 2012

It’s not yet Halloween, but Supreme Court Justice Paul Newby is running against a ghost. His opponent is not Appeals Court Judge Samuel J. (Jimmy) Ervin, IV, but his well-known grandfather, Samuel J. Ervin Jr., the Democrat US Senator from North Carolina who ran the Watergate investigation of President Nixon. Justice Newby is a registered Republican and Jimmy Ervin, like his grandfather, is a Democrat.

Judicial races have been considered “down the ballot” campaigns since Democrats controlling the General Assembly in the 1990s took away their partisan designation. The reason for the change was simple: GOP judicial candidates began winning all the races because Republicans were seen by the public as tougher on crime. Once the races were made nonpartisan, “D” and “R” designation were taken away from the end of a candidate’s names and they became virtually invisible. The change also prevented citizens from casting a straight party vote for judicial candidates.

Now, voters must educate themselves on who the candidates are. Instead, most walk into the polls knowing very little. So what happens? The average person plays a name guessing game with judicial candidates. Such name games can work very well if your name is a famous one, like Judge Ervin’s grandfather’s name. Hence, Justice Newby is running against a ghost.

Some might argue that, “It’s just a seat on an appellate court. Does it really matter? Besides, there are lots of justices on the court. Does it really make a difference if Newby or Ervin wins?” The answer is an overwhelming “Yes” on both counts. In fact, for North Carolinians, this may be the most important race on the ballot. Why? Because the ideological and partisan control of the NC Supreme Court hangs in the balance.

Currently, the Newby seat gives Conservative Republicans a 5 to 4 advantage in Supreme Court decisions. If Ervin wins, Democrats get control of the court and can potentially overturn the recent Republican redistricting of North Carolina Senate and House seats, as well as the state’s US Congressional districts.

This otherwise little-known race has become such a big deal that it has drawn the attention of political pundits across the country, as well as Super PACs and even the New York Times. Hundreds of thousands of dollars are being spent on political TV ads and mailers. This is unprecedented, high drama for a “nonpartisan” judicial election, but the stakes could not be higher. If Newby loses, the current legislative district lines could become a political football if a Democratic-controlled Supreme Court decides to play politics and rules them unconstitutional. Needless to say this would create political chaos in our state while at the same time severely diminishing the reputation of the Court.

Who are the two men? Due to the ethics strictures placed on judicial candidates, they can say very little about their personal feelings. Both men say that they will follow the Constitution, for what that is worth. Both think that the law is important and promise to apply it fairly.

Beyond these innocuous statements, it’s hard to get much else, until you look at the candidates’ endorsements. As the Greek playwright Euripides wrote, “You can judge a man by the company he keeps.” Both men keep vastly different company. On Ervin’s website, he cites endorsements from the AFL-CIO, the liberal Raleigh News and Observer, various employee associations and a left-leaning environmental group. Newby’s website touts multiple endorsements from former chief justices of the North Carolina Supreme Court, both Republicans and Democrats, as well as Court of Appeals judges, NC Chamber of Commerce, National Federation of Independent Business, Greensboro News and Record, and Fayetteville and Charlotte Observers.

In this important election year, it’s worth paying attention to this nonpartisan race. The direction of our state’s Supreme Court, as well as our entire state, is dependent on it. The General Assembly can attempt to pass laws for the Governor to enforce, but the Courts have the final say on whether or not they are legal. North Carolina’s future hangs in the balance with this Supreme Court race. It would be a shame if the ghost of Senator Sam Ervin won on name ID alone because too many voters paid no attention to the living candidates.

Thom Goolsby is a state senator, practicing attorney and law professor. He is Chairman of the Joint Oversight Committee on Justice and Public Safety.