Intent, in politics as in life, is hard to decipher. But what is not in question among judicial independence experts is West Virginia headlines a potentially troubling trend among state legislatures this year of politicians moving to exert control over a separate branch of government.
Lawmakers in 16 states have considered more than 50 different bills to minimize the role of state courts or make it harder for judges to do their jobs, according to an analysis by the nonpartisan Brennan Center for Justice, which described this as an “assault” on the judicial branch: “In the Trump era, courts frequently appear to be the last line of defense against partisan overreach. But in many states, courts’ vital role in our democracy is under threat.”
To some degree, tension between state courts and state government is normal. But what is going on now is not, says Doug Keith with the Brennan Center. The center’s research found that in the past 25 years, just two state judges have been impeached. Compare that with 2018, where on one day in one year, lawmakers impeached four justices. That was just in one state.
In North Carolina, the Republican-controlled legislature managed to get a constitutional amendment on the ballot in November to give lawmakers a lot more control over appointing judges. Right now the state’s Democratic governor gets to do that.
In Arkansas, lawmakers voted to put a measure on the ballot this November that would let them seize control over writing much of the top court’s rules.
In Missouri, Oklahoma and South Carolina, lawmakers proposed legislation to gut the role of independent commissions that nominate judges for the governor to appoint to the courts. Some Iowa and Missouri lawmakers proposed a constitutional amendment to outright eliminate its independent commission that selects judges.
One of the most blatantly political efforts to rein in a court came this year in Pennsylvania, where a dozen Republican lawmakers filed a resolution to impeach Democratic justices who threw out Republicans' congressional map. That effort has stalled, but it was only one of a few examples in recent history of lawmakers trying to impeach justices for specific rulings.
No state has gone further than West Virginia, though. Republicans in the state House said the impeachment was necessary to restore faith in the court after allegations of lavish spending on the part of some justices to renovate their offices. One suspended justice, Allen H. Loughry III, is facing a 23-count federal indictment on charges of fraud and obstruction of justice related to that.
“It has become clear that our Supreme Court has breached the public trust and lost the confidence of our citizens,” state House Speaker John Overington (R) said Monday.
But Democrats and good-government advocates in the state say this does not sit right. They worry lawmakers are taking advantage of one scandal to seize control of the entire court. After Tuesday, the governor can appoint justices to sit on the court until 2020.
“We feel West Virginians are right to be outraged about justices' alleged spending,” said Julie Archer with West Virginia Citizens for Clean Elections, “but we think the optics of what’s happening is really bad: potentially removing multiple justices, subverting the vote of the people and letting the governor fill multiple vacancies on the court.”
"No charges have been brought against any other justices," she added. "It just seems suspicious that all of a sudden they are being swept up in this as well."
Not helping quell fears is the impeachment was done almost entirely along partisan lines in the Republican-controlled House and would inevitably benefit Republicans. If these justices lose their trial in the Republican-controlled state Senate, Republican Gov. Jim Justice will get to appoint new ones. Those justices will not be up for reelection again until 2020, when they will ostensibly have the advantage of incumbency.
Democratic Justice Robin Davis retired Tuesday rather than face impeachment, bashing the impeachment as a breach of justice: “What we are witnessing is a disaster for the rule of law, the foundation of our state and indeed, our own society."
It is impossible to pin down one reason for lawmakers taking increasingly bold actions against courts, Keith said. But it is noteworthy that this is all happening under the umbrella of a president who routinely attacks the courts and independent judicial system for rulings or investigations he does not like.
“It is difficult to divorce this from all the rhetoric we are seeing around the courts,” Keith said. “When you hear political leadership talking about courts that way, it certainly seems to give state legislatures the green light to push the envelope.”