Will North Carolina GOP use a Jim Crow tactic to reshape high court?

North Carolina Chief Justice David Furches and another justice were impeached in 1901 by white supremacist Democrats. They were acquitted after Democratic state senators failed to muster the two-thirds vote required by the state constitution to remove justices. (Image from NCpedia.)

With the Democratic-controlled North Carolina Supreme Court preparing to hear a lawsuit next week challenging the Republican legislature's new election maps, the former head of the state GOP has repeatedly implied that state legislators could impeach judges who rule against them. There have also been what one political observer called "rumblings" that the Republican-controlled legislature could even try to preemptively remove one or two Democratic justices before the court hears arguments over the maps, which a trial court found to be partisan gerrymanders.

No justice has been impeached in North Carolina in more than 120 years, when white supremacist Democrats impeached Republican-appointed justices. The state House can impeach a judge or governor with a majority vote, but the state constitution requires the approval of two-thirds of state senators to convict and remove a member of the high court. 

Republicans don't have enough votes in the Senate to remove a justice. But Dallas Woodhouse, the former head of the North Carolina GOP who now works for the conservative John Locke Foundation, has suggested a way that Republicans could get around the constitutional requirement. He wrote that impeached justices would be suspended under state law until the Senate votes, and senators could "slow-walk any trial possibly past the 2022 elections, when Republicans have a strong chance at retaking a state Supreme Court majority." The court now has a 4-3 Democratic majority.

Before adjourning the 2021 legislative session, Republicans passed a resolution that included some agenda items for the 2022 session — and impeachment was on the list. Some conservatives are also advocating impeachment of Democratic Gov. Roy Cooper over his executive orders to combat COVID-19. 

If one or two Democratic justices are impeached by the House and suspended, the Republican justices could have enough votes to uphold the gerrymandered election districts. But the impeached justices could resign and allow Cooper to fill their seats. 

The legislature could also target justices after the court rules in the gerrymandering case. For example, after the Pennsylvania Supreme Court ordered un-gerrymandered election districts in 2018, Republican legislators considered impeachment of justices but didn't vote on it. The legislator who led the impeachment charge complained that the court didn't give lawmakers a sufficient chance to redraw the districts. 

Woodhouse has similarly suggested that having a court-appointed expert draw new districts, instead of legislators, would be a "constitutional crisis." But a federal court did something similar in a 2018 racial gerrymandering case in North Carolina. In recent months, Woodhouse has also talked about legislators impeaching judges who order more equal education funding or disqualify other judges for conflicts of interest

This week Woodhouse downplayed his talk of legislators impeaching judges, saying that any "suggestions the House is actually preparing to impeach judges at this moment are false."

Impeached for fighting the Klan 

No one has been impeached in North Carolina in more than a century. Several officials were impeached between 1776 and 1901, the year white supremacist Democrats took control of the legislature. Lawmakers haven't handled many instances of judicial misconduct since they created the Judicial Standards Commission in the 1970s and gave the state Supreme Court power to remove justices if the commission recommends disciplinary action.

In 1786, a few North Carolina legislators tried unsuccessfully to impeach all three state Supreme Court justices, the only judges in the state at the time. Judge Edward Clark, who served on the N.C. Court of Appeals and the Judicial Standards Commission in the 1970s and early '80s, said in a 1981 law review article that the 1786 impeachments were motivated by "ill feeling" among two legislators who also practiced law, and that the legislature likely acquitted the justices because "they were all three members of the majority Radical Party."

In 1871 the state House impeached a trial court judge for several incidents of "public drunkenness," including at the inauguration of Gov. William Holden three years earlier, but the judge resigned before the Senate's trial. Holden himself was impeached and removed by a Democratic legislature in 1870 after he raised a small army to quell a violent insurrection by the Klan, whose members had lynched Black leader Wyatt Outlaw and murdered a white state senator. The governor, like President Abraham Lincoln before him, suspended the writ of habeas corpus to allow for mass arrests of Klan members, which Democrats opposed. The N.C. Senate voted to pardon Holden in 2011.

A few decades after Holden's impeachment, the Democratic-led state House voted to impeach two Republican justices — the only time the legislature has impeached judges for decisions they've made. The impeachment battle happened as white supremacist Democrats battled a so-called "Fusion" coalition of Populists and Republicans.

In the 1900 election, white supremacist Democrats won control of the legislature after instituting a literacy test and other measures designed to suppress the Black vote. On Dec. 30 of that year, just days before the white supremacists took power, North Carolina's chief justice passed away. Lame-duck Gov. Daniel Russell, a Republican-Populist elected on a Fusion ticket, appointed Justice David Furches to the leadership position. 

The Democratic legislature repealed some laws passed in previous sessions, including one creating the office of chief inspector of the oyster industry, who then sued the state for his unpaid salary. The N.C. Supreme Court ruled along party lines for the inspector and ordered payment of his salary until the end of the appointed term.

The state House voted to impeach Furches and Justice Robert Douglas, also a Republican, for allegedly violating their oath of office by requiring payment of the official's salary. Democrats also wanted to regain control of the state courts to ensure their voter suppression measures would be upheld. After two weeks of testimony and arguments, a majority of state senators voted to remove the two justices — but not the two-thirds required by the N.C. Constitution. Furches and Douglas remained in office.

'It shouldn't be happening' 

It's unclear whether North Carolina Republicans are actually considering impeaching Supreme Court justices or merely employing rhetoric intended to intimidate them into letting the gerrymandered election districts remain in place for the next decade.

Woodhouse wrote last fall in the John Locke Foundation's Carolina Journal that Republicans were considering the idea of impeaching justices who voted to disqualify their colleagues due to conflicts of interests. Woodhouse and legislators argued that the recusal decision should remain with individual justices, not the entire court. The court agreed. As a result, Justice Phil Berger Jr. will likely hear the gerrymandering case even though his father is a named defendant.

What would legislators use to justify impeachment before the gerrymandering arguments next week? They could possibly impeach Democratic Justices Sam Ervin and Anita Earls — the only woman of color on the court — for failing to agree to the legislative defendants' requests to recuse themselves. They asked Ervin to recuse because he's on the ballot this year, and the court has postponed primary elections during the litigation. And they want Earls, a former civil rights lawyer who sued lawmakers over voter suppression, to recuse due to connections to the plaintiffs and alleged bias against the legislature. 

N.C. Senate President Phil Berger recently shared a series of tweets by Earls, claiming she is biased and should recuse herself. As Senate leader, Berger sets the agenda and would decide whether to "slow walk" any impeachment trial. 

The Senate refusing to vote on impeachment would undermine the separation of powers to create a temporary Republican majority on the high court. Impeachment is meant to be a check on the judicial branch, but only if two-thirds of senators agree. Refusing to hold a vote would be a blatant attempt to circumvent the two-thirds vote required by the state constitution. 

Civil rights activists expressed alarm at the possibility of the legislature impeaching Earls, who has been mentioned by some political observers as a possible replacement for a U.S. Supreme Court justice who's stepping down this summer. James Williams, a racial justice activist and former public defender in Orange County, told Facing South that the impeachment threats "harken back to bygone eras that we hoped were in the distant past."

"It's unprecedented that we're even having this conversation, whether it's a serious threat or a warning shot," Williams said. "It shouldn't be happening."