Republican politicians in Florida and West Virginia were on the verge of replacing most of the members of their state supreme courts, but those courts asserted their independence in the past few days and halted the court-packing plans.
In Florida, outgoing Republican Gov. Rick Scott had planned to appoint replacements for three justices whose terms end on Jan. 8, the same day the next governor will be sworn in. Scott tried to argue that he could fill the three seats that morning, even though the next governor will probably be officially sworn in hours before that, at the stroke of midnight.
But this week the Florida Supreme Court ruled that Scott's term will end before the incumbent justices' terms, thwarting his plan to reshape the court. Scott and his Republican allies have been angry at the court for rulings against them in cases involving redistricting, the Affordable Care Act, charter schools, and elections, including the disputed 2000 presidential contest.
The winner of this year's race for Florida governor — Republican Ron DeSantis or Democrat Andrew Gillum — will get to appoint three of the court's seven justices. But the next governor will be limited to choosing from a list of potential appointees from the state's judicial nominating commission, which Scott has stacked with conservative ideologues. One Florida columnist said that the applicants for a vacancy in 2016 "clearly knew what commission members wanted to hear, and played a comical game of I'm-more-conservative-than-you."
Scott's most recent appointee from the commission's list, conservative Justice Alan Lawson, wrote a controversial dissent in 2012 as a lower court judge. The court recognized parental rights for both members of a lesbian couple who were raising a child together, but Lawson argued that the court couldn't recognize both mothers "unless we are also willing to invalidate laws prohibiting same-sex marriage, bigamy, polygamy or adult incestuous relationships."
Like President Trump, Scott has appointed mostly white men to empty judicial seats. The Florida Access to Justice Project has recommended reforming the commission in ways that foster judicial diversity, lessen "the governor's outsized influence," and allow for more public input.
As for the upcoming vacancies, the Florida Supreme Court must still decide when the nominating commission can begin taking applications to fill these seats. Scott has already started the process, but the plaintiffs in the lawsuit want to wait until after the election, the results of which could influence the decisions of potential applicants.
In West Virginia, the state Supreme Court recently denied Republican Gov. Jim Justice the chance to radically alter its composition.
Back in August, several months after a scandal erupted over the court's extravagant office renovations and other maladministration, the Republican-controlled state House impeached the entire court. Justice Allen Loughry was recently convicted of fraud and lying to investigators looking into the controversy, and another justice resigned and pleaded guilty to less serious charges.
But Democratic legislators accused the Republican majority of slow-walking its investigation to ensure that the governor, not voters in November, would choose replacements for any impeached justices. One member of the court, Justice Robin Davis
Margaret Workman, resigned in time to let the voters choose her successor. Justice Margaret Workman, who was elected as a Democrat before West Virginia switched to nonpartisan elections, was set to be tried in the state Senate this week, but she sued the legislature.
The case went to the state Supreme Court, with substitute judges hearing it due to the incumbents' conflicts of interest. The judges ruled in Workman's favor and criticized the legislature for "a rush to judgment," holding that the impeachment violated the state constitution's separation-of-powers clause. Among other things, the court noted that the legislature accused the justices of violating judicial ethics rules, which the constitution charges the Supreme Court with enforcing.
Last week, the state Senate acquitted the first justice it tried — Beth Walker, who was elected in 2016 with the backing of corporate-funded political action committees. The West Virginia Supreme Court, which was labeled as "liberal" in a 2015 academic study of judicial ideologies, has long been a target for national, corporate-funded groups that help elect judges and lobby to restrict lawsuits by injured people.
Protecting checks and balances
The West Virginia impeachment saga has played out against the backdrop of Republican threats against the independence of courts across the country. Around the same time as the West Virginia impeachment vote, for example, the head of the North Carolina Republican Party, Dallas Woodhouse, suggested the legislature could impeach the state Supreme Court if it didn't like the way the court ruled in a pending case.
The North Carolina legislature has waged a five-year campaign to control state courts, even putting a constitutional amendment on the ballot this year that would give legislators control over filling vacant judicial seats. If the amendment passes and incumbent Republican Supreme Court Justice Barbara Jackson wins re-election, the legislature could expand the size of the court and use its new authority to determine who fills the two new "vacancies," creating a new Republican majority on a court that's now majority-Democrat.
This is not the North Carolina legislature's first court-packing bid: It previously considered a scheme that would have effectively undone the results of the 2016 state Supreme Court election, in which voters gave Democrats the majority.
But even if the amendment is ratified by voters, the North Carolina Supreme Court could still stop the legislature's power grab. A pending lawsuit from the state NAACP and Clean Air Carolina argues that the legislature — which federal courts have repeatedly ruled is unconstitutionally gerrymandered — lacks the authority to amend the state constitution. Such a ruling would lead to a political backlash, as this is the lawsuit that Woodhouse suggested could lead to the justices' impeachment, if the legislature doesn't like their ruling.
Amid these partisan threats to the state judiciary, many of this year's supreme court candidates have campaigned on the importance of judicial independence. In North Carolina, Jackson's re-election campaign has stressed the need "fair and impartial" courts, while her challengers have attacked the legislature's attempts to influence who sits on state courts. Republican candidate Chris Anglin, who was a registered Democrat until shortly before entering the race, said that he ran "to stand up for an independent judiciary" and for the "Republicans who are appalled at this assault on the rule of law."
And Jackson's Democratic challenger, civil rights lawyer Anita Earls, told Facing South that recent developments underscore the need for protection of state constitutional rights. "We need independent courts to have an effective system of checks and balances," Earls said.