Judicial Appointments Amendment Letter to Editor 9-5-18

Judicial Appointments Amendment

Diane Lemieux


There has been a lengthy power struggle between the NC legislative Supermajority and Governor Cooper. This has resulted in a series of bills, vetoes, overrides and lawsuits and has landed us where we are now in relation to this proposed constitutional amendment. Currently, the governor, with active input from the NC Bar Association, makes appointments to fill judicial vacancies.

Governor Cooper sued the NC General Assembly in Wake County Superior Court.  His attorney, John Wester, wrote that charged that the amendments would “eliminate the separation of powers, usurp the governor’s executive authority and seize control of the appointment of every member of virtually every board and commission in all three branches of state government.”  He said the legislature’s written questions for the amendments are false and misleading and asked for this amendment to be removed from the ballot.

The NAACP and Clean Air Carolina also filed suits against this and three other amendments on the ballot.  They claimed that the legislature was elected via illegally gerrymandered districts, as determined by federal court, and that it has no standing. The cort ruled against this lawsuit, but it has been refiled in light of the new ruling that the 2016 maps are unconstitutional.

Senate Bill 814, proposing this amendment, is called Judicial Vacancy Sunshine Amendment. Critics have referred to this amendment as Stack Courts with Partisan Hacks.

Revised ballot language reads as follows:

“[ ] FOR [ ] AGAINST

“Constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend nominees to the Governor via legislative action not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.”

We need to look in between and behind the words to see what’s missing and determine the true meaning of this amendment.  While the revised language is clearer and clarifies the governor’s veto power, voters need to understand the big picture, which is that this is another attempt to violate the separation of powers and transfer authority from the executive branch to the legislature.

Here’s how it will really work if this amendment is passed. The new Non-partisan Judicial Merit Commission will receive nominations from NC people and then evaluate them to determine if they are qualified.  These evaluations will be sent to the General Assembly, who will recommend two candidates for each vacancy to the Governor, who will then appoint someone to fill the vacancies.

GOP Rep. Justin Burr says the General Assembly would provide a more open and transparent process with opportunity for public input.  But NC Policy Watch wrote that, “Each bill, however, allows for the Speaker of the House and the Senate President Pro Tem to submit a nomination to the Governor if lawmakers are not in session (without public input).”

Progressive Pulse reported that Rep. Robert Reives II (D-Chatham, Lee) had objections to the GOP claims that judicial decisions are currently made behind closed doors in the governor’s mansion. “It’s kind of interesting that we’re talking about transparency of the process… You get a couple people in the same room making the decisions and that’s it, so I don’ really see how that is a different process. I have a huge concern about the General Assembly making any judicial appointments in this manner because again, I feel like it’s infringing even further on the judicial branch of government, which is a completely separate branch of government.”

After a back and forth of lawsuits and rulings, here is where things stand with the two amendments dealing with separation of powers and transfer of power from the governor to the legislature. The lower court ruled that the amendments could be put on the ballot with the new language. Cooper appealed to the NC Supreme Court, who declined the case and sent it back to the lower court to be decided on the merits of the case.  This means that the lawsuit will continue even though the amendments will be voted on in November 2018.  In the event that Cooper wins, the results of the election could be voided.

And, one more thing to note, the elections will proceed in spite of a court ruling that the 2016 congressional map has been declared unconstitutional. 2018 is the last year that map can be used.


  • Legislators control the amendment writing procedure and can propose amendments without having to explain their effects.
  • NC citizens have a right to amend their constitution


  • Amendment represents a conflict between the executive and legislative branches, violating separation of powers
  • Governors who are elected statewide to ensure that laws and regulations are carried out would forfeit this authority to legislators who were elected in gerrymandered districts.

This powerplay is a desperate attempt by the legislature to give themselves more power.  We need to respect the separation of powers cited in our Constitution.



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