Can we at least try to fix our judicial system?

The public, for the most part, understands that the myth of a nonpartisan, cordial government is just a story we tell ourselves. The longest holdout of this fairytale has been the folks perpetuating it, sometimes by omission but other times by outright lies and half-truths.

North Carolina’s judicial branch says in its mission statement that it plans to serve North Carolinians by “providing a fair, independent and accessible forum” to settle their disputes between one another. Similarly, the U.S. Supreme Court building has the words “Equal Justice Under Law” etched in stone at its entrance.

There are differences between state and federal courts — state judges are partisan and elected, federal judges are appointed by the president and approved by the Senate. Both sell objectivity on the surface, despite knowing it isn’t true and that the public has started catching on. So why is no one fixing it?

Michael Gerhardt, a UNC law professor and special counsel to the Senate Judiciary Committee for nearly all of the federal Supreme Court justices, assures that the partisanship has existed for a long time.

“Brett Kavanaugh, for example, is not going to vote against the interests of the people and parties who support him,” Gerhardt says. “You won’t see that happen; it’s not likely. And we have to ask the question, ‘Why is it not likely?’ and I think the answer is because justices are political in various respects.”

Taking that logic to the state level, the General Assembly made the decision in 2016 to go back to partisan judicial elections for the first time in more than 10 years, making it the first state to reverse the decision to hold nonpartisan elections. At the time, lawmakers held that it was because so few voters were casting ballots in those races, although Democrats saw it as a power grab.

By the 2020 election, hundreds of thousands of dollars were being spent in judicial races by both parties, despite Democrats’ condemnation of the ruling. Incumbent chief justice Cheri Beasley received $284,296.43 from the North Carolina Democratic Party through in-kind donations for 2020, though she ultimately lost to Paul Newby.

Newby didn’t receive any in-kind donations in 2020 from the NCGOP, but Phil Berger Jr., justice and son of the senate majority leader, received $73,750 in in-kind contributions from the party for mailers, and both received multiple donations from county political parties. Newby and Berger, alongside Republican justice Tamara Barringer, received the max donations from well-known Republicans and their family and CEOs of real estate companies or manufacturers within North Carolina.

It seems like no matter what, the people who lose in this political arms race are the people who interact with the justice system the most; and whether we like it or not, the constant fights over our Constitutional rights means almost all of us are at risk of losing, whether the courts overturn Roe v. Wade or if the state courts rule that the General Assembly has no duty to fund our public education.

Since we can plainly see the issues with a partisan judiciary, we should course-correct. Gerhardt says the solution at the national level may be term limits and stricter merit-based nominations. At the state level, the solution may be to go back to non-partisan elections, or to prohibit political parties and action committees from contributing to campaigns, whether through in-kind donations or outright cash.

It could fall on Democrats to play to the level of Republicans; it’s obvious that timidly refusing to do anything isn’t working. It would make more sense for them to nominate judges that parallel the GOP in terms of ideological extremeness, or to pack the courts, or both. Political polarization isn’t what we should aim for, but in our current world this seems to be the only feasible means for getting something close to fair.

Above all, it seems like the first step to admitting the failures of the court is to admit the process is poisoned to a level we can’t condone. Can our politicians acknowledge this, too?