Judge Mike Morgan smiles as he takes the stage during an election party in Raleigh on election night. Ethan Hyman ehyman@newsobserver.com
Judge Mike Morgan smiles as he takes the stage during an election party in Raleigh on election night. Ethan Hyman ehyman@newsobserver.com

Taylor Batten

GOP gets wonderful, awful idea on Supreme Court

Editorial Page Editor

November 11, 2016 6:04 PM

The most powerful Democrat in North Carolina – and perhaps the only brake on the state’s Republican legislature – might be a guy you’ve never heard of. Say hello to one Mike Morgan – but do it quickly because his outsized influence might end before it ever starts.

Amid Tuesday’s Republican wave, Morgan surprised Supreme Court Justice Bob Edmunds, a Republican who is the most senior associate justice on the court. Morgan’s 9-point win and January swearing-in flips the Supreme Court from 4-3 majority Republican to 4-3 majority Democrat.

Roy Cooper, it appears, knocked off Pat McCrory for governor (pending further vote-counting). That might seem comforting to Democrats, but if you thought legislators steamrolled McCrory for four years, just watch what they do to Cooper. Republicans maintained their supermajority in both the House and Senate on Tuesday. So Cooper can veto bills until his stamp runs out of ink, but every one of them is likely to be overturned.

Cooper might have a bully pulpit with the public, but he’ll have precious little power beyond that.

Morgan’s stunner, however, changes everything. Though the Supreme Court is technically nonpartisan, and though we wish it would be devoid of politics, it isn’t. With Cooper impotent, this newly Democrat-controlled court is the only potential check and balance on the legislature.

This, Republican leaders must be thinking, cannot stand. And so they got a wonderful, awful idea.

If the voters elect a Democratic majority on the Supreme Court, simply pack the court with your own Republican justices until you’re back in control! Brilliant, if blatantly offensive.

The N.C. Constitution says the court shall consist of seven justices, but also gives the General Assembly the power to add up to two more, to be appointed by the governor. So legislators could convene in coming weeks about Hurricane Matthew recovery and throw in a little high jinks while they’re there. Lame duck McCrory could then spill one last brazenly political stain on his legacy.

Senate leader Phil Berger and House Speaker Tim Moore have not commented on the court-packing idea, which has been floating around Raleigh circles since the election. They should, and here’s what they should say:

“North Carolina voters have made their choices. We will respect their will. We will not attempt a naked power grab, and we will do our best in the next Supreme Court election.” Better yet, they could pledge not to pass bill after bill that raises constitutional concerns.

In an interesting plot twist, it was Berger and Republican senators who failed to protect Edmunds in the election.

Appellate judicial races had been nonpartisan since 2004. The House passed a bill last year that made races for the Supreme Court and Court of Appeals partisan. But the Senate passed a different version, leaving out the Supreme Court and making only the Court of Appeals partisan. That version became law.

Morgan and Edmunds, then, were on the ballot with no party by their name, and Morgan was listed first. In the five Court of Appeals races, parties were included and each Republican was listed first. They went five-for-five.

So legislators missed their chance to protect Edmunds. Responding by packing the court in defiance of the voters would be too much, too late.

Email: tbatten@charlotteobserver.com; on Twitter: @tbatten1.

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