The forces of darkness in NC are trying to erase a great NC Supreme Court justice | Opinion

Anita Earls is a great justice. One of the very best in the long history of the North Carolina Supreme Court. She is immensely knowledgeable, deeply intellectual, stunningly articulate, relentlessly honest, unfailingly fair, unflinchingly courageous, thoroughly steeped in the theory and practice of American constitutional law, and a lifelong devotee of democratic equality and civil rights.

These attributes are no longer to be tolerated in North Carolina. The forces of darkness here (and I mean that literally) have decided she must be erased.

I was heartbroken to learn that Justice Earls had sued the North Carolina Judicial Standards Commission. Heartbroken to read the complaint. The document described being “subjected to a series of months-long intrusive investigations concerning her comments regarding the NC judicial system.” The “on-going Commission campaign” — directed at Earls’ public comments concerning diversity, racism and sexism in our courts — was meant to “stifle (her) free speech rights and expose her to punishment ranging from a letter of caution…to removal from the bench.”

Shocking words.

It’s even more shocking to think of what a vile crusade it must have taken to get this soft-spoken, but unfalteringly solid and truth-speaking woman, to become a federal plaintiff. And then I remembered, of course, that Republicans have threatened Earls with impeachment throughout her entire tenure.

I’ll concede I don’t know who filed the anonymous charges. But I do know that the Commission, dominated by powerful judges and lawyers, took the absurd claims seriously, and intrusively, and then opened the review a second time — again threatening the nationally renowned jurist.

It is embarrassing to contemplate that any commission member who went to law school could fail to understand how certainly, how securely, Earls’ public statements fall within the core protections of the First Amendment.

As Justice Thurgood Marshall explained in Renne v. Geary (1991): “if a state chooses to tap the energy and legitimizing power of the democratic process (to select judges) it must accord the participants the First Amendment rights that attach to their roles.” (Earls is a candidate for re-election).

It can be tough, on occasion, to square the tumble of democratic selection with traditional norms of judicial expectation and discipline. But no system of democracy and constitutionalism would countenance this.

The Commission notified Earls of its concerns that she has claimed that her “Supreme Court colleagues are acting out of racial, gender and/or political bias in some of their decision-making,” thus, wounding “public confidence in the integrity and impartiality of the judiciary.” Really.

Commission recommendations are forwarded for review to the N.C. Supreme Court. Yeah, that Supreme Court. Paul Newby’s Supreme Court. Where Chief Justice Newby wrote, a few months ago in Harper v. Hall, that his (now former) colleague Robin Hudson’s earlier opinion for the court reflected “partisan biases that have no place in a judiciary dedicated to the impartial administration of justice and the rule of law… (but sought) the singular aim of reaching” the political outcome “desired.”

Earlier, as a candidate for reelection, Newby famously declared his Democratic colleagues were “six AOCs” (referring to Alexandria Ocasio-Cortez) — “It’s six to one...I’m the last man standing.” And, just a few months ago, Associate Justice Phillip Berger Jr. taunted his fellow justices in a dissenting opinion by giddily citing a WRAL article entitled “How Republicans gained a lasting grip on the NC Supreme Court.” Never seen that before.

I despise these statements by Newby and Berger. But they’re protected by the First Amendment. I much admire Justice Earls’ needed remarks. They’re protected too.

Contributing columnist Gene Nichol is a professor of law at the University of North Carolina-Chapel Hill.