Will the General Assembly attempt to pack the court?
By Steve Herring
Published in News on December 13, 2016 9:57 AM
Wording in the governor's proclamation convening today's special legislative session has some worried that it opens the door for the Republican-controlled General Assembly to pack the Supreme Court with Republican justices.
Fueling the concern has been an unwillingness on the part of Republican leaders to say outright that such an action is not under consideration.
Republican members of Wayne County's legislative delegation call it an unsubstantiated rumor and say that it would be irresponsible to comment on it.
However, while Republicans continue to downplay the issue, Democratic Rep. Larry Bell of Clinton said he, too, has heard Republicans would attempt to use the session to pack the Supreme Court.
Democratic Sen. Don Davis of Snow Hill could not be reached for comment prior to press time this morning.
If approved, such legislation could shift the balance of power on the state's highest court by allowing Gov. Pat McCrory to appoint two justices before he leaves office in January.
The election of Democrat Mike Morgan last month gave the Democrats a 4-3 margin on the court. McCrory's appointments could flip it back to a 5-4 Republican margin
"There have been all kinds of rumors going around including packing the courts," said Republican House Majority Leader John Bell of Goldsboro. "I have heard everything. If we were taking up every rumor that I have heard we would be here to next year.
"The only time the packing-the-court issue has been brought up is when we were on a conference call about coming back in special session and some members said, 'Hey, we are getting asked about packing the courts, and we don't know anything about it.' In regards to the court-packing rumors, it is just that, a rumor that is unsubstantiated. I have not heard any talk of this in our House Caucus. It would be irresponsible of me to comment on a hypothetical speculation."
There have been no formal discussions on the issue at all, he said.
Republicans, Rep. Jimmy Dixon and Sen. Louis Pate, both of Mount Olive, agree.
Adding the phrase "other matters" is routine in a proclamation calling for a special session, John Bell said.
"Anytime the General Assembly opens its doors for session it puts us in a situation where we can address a number of issues," he said. "So if you remember from the last session, we did have a number of issues left on the table.
"We have the opportunity to take those up, if we so choose to."
Larry Bell said he and other legislators had gathered at the Democratic Party headquarters Monday night to look at the state constitution.
"The legislature has a right, I guess. It has the power to add some justices," he said.
But Larry Bell said his interpretation was that it addresses replacing a justice who might die in office.
Adding new members just to add members is an "overreach," he said.
"I have heard that everybody is thinking that might be something that might come up as a surprise," Larry Bell said. "But then, on the other hand, if they are doing that as a partisan-type move, I think it could come back to hurt them if Democrats get a majority at the time redistricting comes around.
"I think people need to think about that, Democrats or Republicans. They need to think about are you doing something for the right reasons because things are not always going to remain the same. Changes can affect you adversely. I think that they need to be aware that you just don't do things just because you have the power to. You do it because it is the right thing."
Larry Bell said he hopes legislators will spend their time instead figuring how to repair roads and the damage done by Hurricane Matthew.
"I hope it (the court issue) is just talk, but it wouldn't surprise me at all," he said. "I hope we will try to find the revenue to help the people because some folks want to sell their houses and things like that, but they can't because they are condemned."
There are storm-damaged roads in Sampson County still not open, he said.
Larry Bell said he was concerned that the court issue could be bundled with the storm aid bill.
It should be a separate bill, he said.
"If you want to do it, why not make a separate bill out of it?" he said.
However, Larry Bell said he thinks the effort would be made to put it all in one bill in order to make it difficult to vote against it.
Larry Bell said he would probably vote against it either way even though it might send the wrong message to some people.
Dixon said the session was called because of the pressing needs created by Hurricane Matthew and the wildfires.
"The primary purpose for the session is to address immediate emergency needs resulting from both the hurricane and the wildfires in the mountains," Dixon said. "We certainly don't have the data from which to make the final appropriations for the disasters so this is just for immediate known needs that cannot wait until we convene in regular session.
"As for the speculation about other issues being discussed, I can only say that I have had no discussions nor have any of the speculative issues bounced around in the media been the subject of any caucus discussions."
There may be additional issues authorized by the proclamation presented for consideration in the session, Dixon said.
"If so, I will publicly express my opinions at that time," he said. "Some of the media and editorial shots across the bow of the General Assembly boat to not do something may be taken by some legislators as threats attempting to bully those who are elected to conduct the business of the state within established legal guide lines."
Pate said he has not heard any "reliable information" concerning an action to pack the Supreme Court with additional justices.
"I have recently read that the N.C. Court of Appeals had additional judges added during the 2000-01 legislative session during the Hunt administration and a Democrat-controlled General Assembly," Pate said.
There are difference between the two courts.
The Court of Appeals is an error-correcting court. It does not overrule precedent. That is the role of the Supreme Court.