Attacks on judicial independence are becoming more frequent and more partisan. The current effort to impeach the entire West Virginia Supreme Court, while not unprecedented, is taking place against a backdrop of political attacks against judges elsewhere.
"There's a kind of a war going on between the legislatures and the courts," says Chris Bonneau, a political scientist at the University of Pittsburgh. "Absolutely, we're seeing a new environment."
The West Virginia House last month voted to impeach all the sitting justices on the state Supreme Court. The state Senate is set to begin its impeachment trial Tuesday. There were legitimate reasons for legislators to go after justices, or at least some of them.
In June, Chief Justice Allen Loughry was charged with 22 criminal counts, including fraud and witness tampering. Two weeks ago, Justice Menis Ketchum pleaded guilty to fraud. The court as a whole has been accused of lavish spending, including purchases of expensive custom-made office furniture. This is also the court that triggered the U.S. Supreme Court to rule in 2009 that a justice should have recused himself from a case involving a coal company after it donated $3 million to his campaign.
"The West Virginia Supreme Court is kind of a battered one," says Michael Nelson, a political scientist at Penn State University. "It's a particularly weak court to attack because its credibility has been debated."
Nonetheless, West Virginia Democrats have accused Republicans of staging a coup by impeaching the entire court. The allegations of criminal impropriety had been known for months, but legislators waited until last month to act -- missing a deadline to let voters, rather than the governor, fill any vacancies. (Justice Robin Davis resigned, rather than face an impeachment trial, to give voters a chance to pick her replacement.) Republican Gov. Jim Justice did little to assuage complaints of partisan meddling in the courts by appointing two politicians, state House Speaker Tim Armstead and Congressman Evan Jenkins, to interim posts on the court last week. It's not unheard of for sitting politicians to be appointed to court seats, but it's not the common practice.
Judicial impeachments actually were rather common in earlier eras. During the 19th century, for instance, New Hampshire's legislature made a habit of clearing out the entire state Supreme Court, doing so on at least five occasions.
In the 20th century, impeachments became increasingly rare. In most instances, talk of impeachment has been just that, with legislators stopping short of actually filing resolutions to get rid of jurists.
But while "threats of this nature have been going on for years," says William Raftery of the National Center for State Courts, articles of impeachment are now being filed more often and for more reasons. Over the past decade or so, judges have become targets of criticism not only from politicians but cable talk-show hosts. In the past, grounds for impeachment have typically been treason, high crimes or malfeasance. That's changing. These days, lawmakers' partisan disapproval of rulings appears to be a strong motivator for ousting judges.
The North Carolina Case
Earlier this year, Republican legislators in Pennsylvania filed articles of impeachment against state Supreme Court justices who had overturned the state's congressional map. The court had ruled that the map was an unconstitutional gerrymander and imposed a new one that was more favorable to the Democratic Party. Pennsylvania Democrats may score a net gain of three or four seats in the U.S. House as a result.
Typically, justices are targeted by justices angry with their decisions over controversial matters like gay rights or school funding levels. Now, preemptive threats are being made before any legal decision has been made.
In North Carolina, Dallas Woodhouse, executive director of the state Republican Party, publicly threatened impeachment if justices tossed aside constitutional amendments placed on the ballot by the legislature. One of the amendments would take some of the power to fill judicial vacancies away from the governor (currently, Democrat Roy Cooper). Instead, a commission would recommend names, the legislature (currently controlled by Republicans) would whittle the list down to as few as two choices, and the governor would pick from those.
Two weeks ago, a North Carolina Superior Court did remove that proposal from the ballot, finding that its language was misleading and vague. The state House then approved a new version, which the state Senate is expected to pass on Monday. It was the latest in a series of changes North Carolina legislators had opted to impose on the judiciary, among them making judicial elections partisan and canceling this year's primaries for judicial elections.
The move in North Carolina to tie the governor's hands when it comes to appointing replacement judges has been derided by all the state's former Supreme Court chief justices, as well as its five living former governors -- Republican and Democratic.
"It's about partisan politics, it's about power politics, and it must be stopped," said former GOP Gov. Jim Martin, who served from 1985 to 1993.
Most of the time, impeachment resolutions aren't introduced by legislative leaders or senior members of the judiciary committee. That was the case in Pennsylvania.
"While I believe the state Supreme Court's decision to draw and implement their own congressional redistricting map is wrong," says Dave Reed, the Republican House majority leader, "disagreement over the outcome of any particular case should not be grounds for impeachment."
But rank-and-file lawmakers angry over a judicial ruling don’t always see it that way.
Two years ago, the Kansas Senate, angry about decisions on school funding and the death penalty, approved legislation to expand the playing field for impeachment to include “attempting to subvert fundamental laws and introduce arbitrary power” and “attempting to usurp the power of the legislative or executive branch of government.”
Do Voters Care?
Legislators in other states, unhappy with the partisan makeup of their courts, have simply expanded or contracted them. Last year, North Carolina's legislature shrunk the state court of appeals by three members. In 2016, Arizona and Georgia's Republican-majority legislatures both enlarged their supreme courts by two seats, allowing their governors to appoint new partisan majorities.
Republican legislators have introduced more "court curbing" bills in recent years than Democrats, according to Meghan Leonard, a political scientist at Illinois State University.
There are several explanations for this.
For one thing, there are simply a lot more GOP legislators and legislative majorities these days. Republicans are paying exceptionally close attention to the courts as divisive social issues have their cases heard. Also, courts in many states have ruled in favor of minorities and taken liberal positions on issues such as gender equality and voting rights. Finally, changes in partisan control take longer to reshape a state court than a legislative body. Many justices in Republican states are the appointees of long-retired Democratic governors, or were elected a while ago to longer terms than lawmakers.
In West Virginia, where the GOP has taken control of the legislature and governorship in recent years, the Supreme Court has remained in Democratic hands.
"Courts generally lag behind, and so are willing and able to put the brakes on things that other people want to rush through," says Nelson, the Penn State political scientist. "Depending on which side you're on, that's either a feature or a bug."
The midterm elections could result in Democrats showing more willingness to change court structures.
"You've seen lots of proposals in the last few months from left-leaning academics or consultants that once Democrats get control of Congress, they should expand the courts," Nelson says.
Attacks on judicial independence are certain to be criticized not just by the losing party but by retired judges and editorial writers. What's less clear is whether the public cares. Polls indicate that the public has more respect for the judiciary than the political branches, but few voters follow the ins and outs of state judicial politics.
"For very few voters is the judiciary a decisive issue," Bonneau, the Pitt political scientist, points out.
Still, in a time of intense partisan divisions, voters want to see their "team" win more often. They're less likely to worry about an assault on separation of powers or other concepts that they may hazily remember from civics class. After Senate Republicans kept a seat on the U.S. Supreme Court vacant for more than a year, GOP voters were a lot less interested in punishing them for violating a norm than they were in electing a president who would pick a justice they liked.
So there's potential political gain for state legislators in removing justices who make decisions that they -- and the voting public -- don't like, but very little political risk. The only real risk is to the court system and its integrity.
"When we start meddling with institutions simply because we don't like a certain outcome, those institutions lose legitimacy," says Bonneau. "If we want them to have independence, sometimes they're going to do things we don't like."