Courts are on your fall ballot
Judge Aileen Cannon of the Southern District of Florida is perhaps the most notorious of Donald Trump’s judicial appointees. Her foot-dragging on the Trump classified documents case has doomed special counsel Jack Smith’s prosecution from occurring before this fall’s election. Judge Matthew Kacsmaryk of the Northern District of Texas “has become a go-to judge for parties filing lawsuits challenging President Joe Biden’s policies.” The U.S. Supreme Court just settled a case women’s rights opponents brought before Kacsmaryk to suspend the FDA’s approval of medication abortion.
“The next president is likely to have two new Supreme Court nominees — two more. [Trump has] already appointed two that have been very negative in terms of the rights of individuals,” President Joe Biden told Jimmy Kimmel during a Los Angeles fundraiser over the weekend (CNN):
“The idea that if he’s reelected he’s going to appoint two more flying flags upside down,” Biden said in an apparent reference to a flag that once flew outside the home of Justice Samuel Alito. Asked by Kimmel whether he considered this the scariest part of a second Trump term, Biden responded, “It is one of the scariest parts.”
Federal courts are not the only ones on the fall ballot. Only a handful of state do not elect judges in some manner. After Republicans won a 5-2 majority on North Carolina’s state Supreme Court in 2022, they quickly reversed cases decided in the last court session, “one blocking a photo ID law and one striking down partisan gerrymandered maps.” Justice Anita Earls, a former civil rights attorney, decried the move as a “process driven by partisan influence and greed for power.”
“In a single blow, the majority strips millions of voters of this state of their fundamental, constitutional rights and delivers on the threat that ‘our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench.’ ”
Justice Anita Earls
Your state similar? Pay attention to those down-ballot races.
ProPublica has been busy examining conservative thumbprints on the scales of justice. In North Carolina, just by coincidence:
Last fall, out of public view, the North Carolina Supreme Court squashed disciplinary action against two Republican judges who had admitted that they had violated the state’s judicial code of conduct, according to three sources with direct knowledge of the decisions.
One of the judges had ordered, without legal justification, that a witness be jailed. The other had escalated a courtroom argument with a defendant, which led to a police officer shooting the defendant to death. The Judicial Standards Commission, the arm of the state Supreme Court that investigates judicial misconduct by judges, had recommended that the court publicly reprimand both women. The majority-Republican court gave no public explanation for rejecting the recommendations — indeed, state law mandates that such decisions remain confidential.
North Carolina’s disciplinary procedures are unusually opaque, ProPublica reports (note my bolding):
Since 2011, North Carolina’s Judicial Standards Commission has referred 19 cases to the Supreme Court for judicial discipline, according to the court’s annual reports. In that time, the court has issued 17 public disciplinary orders, ranging from reprimands to suspensions without pay.
Had the Supreme Court followed the commission’s recommendations in the cases of the two Republican judges, it would have meant publicly reprimanding them ahead of elections for both in 2024. Judge Lori Hamilton, a longtime Republican, had campaigned with the slogan, “the ideal conservative.” Judge Caroline Burnette had previously been a Democrat — but she switched her registration before her case got to the Supreme Court, according to public records.
See ProPublica for the details of those cases. But ICYMI:
Months after the Supreme Court decided in the fall of 2023 to let Hamilton and Burnette off without public consequences, it issued its most recent disciplinary order. In March 2024, the court concurred with the commission’s recommendation for punishment of Angela Foster, a Black Democratic judge who had pressured a court official to reduce a bond for her son and had taken over a courtroom reserved for other court officials, thereby delaying over 100 cases. The Supreme Court suspended her without pay for 120 days.
By the way, Earls has been a target:
In March 2023, Earls, the Supreme Court’s lone Black justice and a Democrat, received a letter from the commission informing her that she was under investigation. The letter stated that Earls had been accused of disclosing “confidential information concerning matters being currently deliberated in conference by the Supreme Court.” If the commission found evidence of a serious violation, it could send the case to the Supreme Court, which would make a final determination and could go as far as to expel her.
At the center of the anonymous complaint was the allegation that Earls had told lawmakers and state bar members at two different meetings about proposed rule changes that would give more power to the Republican justices. The complaint, which was made after WRAL News published an article describing the meetings, also alleged that she’d provided confidential information to a reporter.
In her response to the letter, which later was filed in court, her lawyer argued that it had been standard practice for justices to discuss the court’s rule changes with affected parties and that no information had been leaked. Earls’ lawyer also wrote that if the matter proceeded to a hearing, Earls planned to make the investigation public and subpoena “current and former Justices” about their “actions.” In May, the commission dismissed the complaint, providing Earls with verbal and written warnings “to be mindful of your public comments,” according to court documents.
In June, Earls, the only person of color on the court, gave an interview to Law360 in which she criticized Chief Justice Paul Newby and other conservative justices for refusing to address the lack of diversity in the state’s court system. She revealed that Newby had effectively killed its Commission on Fairness and Equity by not reappointing its members and that he had ended implicit bias trainings for judges, which Earls had helped set up. Much of the interview was framed around a Law360 analysis and an outside study that found that the vast majority of state appellate court judges, and the attorneys arguing before them, were white and male. In reference to the findings, Earls said that “our court system, like any other court system, is made up of human beings and I believe the research that shows that we all have implicit biases.” She said that her five Republican colleagues “very much see themselves as a conservative bloc” and that “their allegiance is to their ideology, not to the institution.”
In August, Earls received another letter from the commission alerting her that it had “reopened” the former investigation. The letter warned: “Publicly alleging that another judge makes decisions based on a motivation not allowed under” the code, such as racial or political biases, without “definitive proof runs contrary to a judge’s duty to promote public confidence in the impartiality of the judiciary.”
Rather than letting the investigation proceed in secret again, Earls sued the commission in federal court, seeking an injunction to stop “an on-going campaign” by the commission to “stifle the First Amendment free-speech rights of Justice Earls and expose her to punishment.”
Two weeks after the lawsuit was filed, Democratic state lawmakers held a press conference to call the investigation into Earls “a political hit job” — and one state representative accused Newby of pushing it, though he said he could not reveal his sources. Four sources knowledgeable about Newby’s or the commission’s actions told ProPublica that the chief justice encouraged the investigation. The sources requested anonymity because the inner workings of the commission are confidential and because they feared retaliation.
Earls is up for reelection in 2026. Her colleague, Justice Allison Riggs, previously served as co-leader of the Southern Coalition for Social Justice in Durham. She was appointed to the seat by Gov. Roy Cooper in 2023 and is up for reelection. State Democrats hope to hold her seat this fall and Earls’ in 2026. By flipping “two of the three seats up for election in 2028, Democrats will regain control of North Carolina’s high court — just in time for redistricting in 2030, when the maps will be redrawn once again.”
Down-ballot races matter. From January 2022:
I live in one of David Pepper’s “Laboratories of Autocracy” in which a GOP-legislative offense wreaks havoc in the capitol while minority Democrats are perpetually on defense. I spent 2016 telling progressives President Hillary can’t solve my legislature problem; President Bernie can’t either. WE have to solve that problem. Here.
That doesn’t just apply to red legislatures but to red courts in your state too.
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