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OPINION: Two conflicts of interest on the N.C. Supreme Court that should not be swept under the rug

There is nothing new about the idea that blood runs thick in politics. The list of prominent American political figures and families who have championed and facilitated the political careers of children, spouses, siblings, nieces, nephews, in-laws and the like is a long one.

The current North Carolina political scene is peppered with examples — from former Lt. Gov. Dan Forest (son of former Charlotte mayor and congresswoman Sue Myrick) to current state Supreme Court Justice Samuel Ervin IV (grandson of the U.S. Senator) to any number of state lawmakers, judges, and local officials who followed the footsteps of parents and other relatives into the political fray.

Sometimes, family ties are even strong enough to overcome partisanship — something that was demonstrated a few years’ back when that most Democratic of American political families, the Kennedys, dutifully lined up to help elect Republican Arnold Schwarzenegger (then the husband of Kennedy scion Maria Shriver) as governor of California.

Political dynasties are a well-established part of American politics. However, they can still present complications and impose additional responsibilities on those with close family ties to officeholders.

Recently, for instance, legitimate questions have arisen about the fact that the daughter-in-law of the new governor of New York, Democrat Kathy Hochul, is a lobbyist for the pharmaceutical industry. Meanwhile, in Ohio, the son of Republican Gov. Mike DeWine — state Supreme Court Justice Pat DeWine — recused himself from an important case in order to “avoid any appearance of impropriety.”

This latter instance is especially relevant in North Carolina right now thanks to the election last year of state Supreme Court justice, Phil Berger Jr. — the son of the state’s most powerful legislator, Senate President Pro Tem Phil Berger Sr.

Indeed, as Policy Watch reported last month, lawyers for the plaintiffs in North Carolina NAACP v. Moore and Berger — a case currently pending before the court that challenges the constitutionality of legislature’s actions in placing a pair of constitutional amendments on the state ballot in 2018 — recently filed a motion to disqualify Berger Jr. based on the fact that he is the son of a named defendant.

As noted in the motion:

Senator Berger was a leader in the decision to propose and support constitutional amendments in 2018. Senator Berger remains the President pro tempore of the Senate and is a named Defendant and spokesperson in this case with decision-making power over the litigation at issue here and a significant stake in the outcome.”

Berger Sr. has also, they note, publicly criticized a lower court ruling in the matter as “absurd.”


Lawyers for the defendants argue in response that since Berger Sr. is only being sued in his official capacity and not personally, there is no need for recusal. Essentially, they contend, if Berger Jr. is forced to recuse himself in this case, he could face such a situation repeatedly as long as his father is Senate leader, and that body continues to find itself in litigation that comes before the court.

Unfortunate and inconvenient as that might be, however, that should be the Bergers’ problem — not that of litigants seeking justice. No one forced the two men to pursue overlapping political careers. Moreover, it strains credulity to imagine that Berger Jr. can bring a truly impartial eye — much less avoid even the appearance of prejudice – in assessing the official actions of the man who raised him, shares his name and political beliefs, and has long championed his political career.

Can you imagine the outcry if the child of U.S. Senate leader Chuck Schumer or House Speaker Nancy Pelosi were even floated as a possible nominee to the U.S. Supreme Court? As one wag recently observed, if the defendant in a lawsuit once changed your diaper on regular basis, you probably can’t act as an impartial judge in the matter.

Plaintiffs have also asked newly elected Justice Tamara Barringer to recuse herself given that she actually voted “yes” on both amendments during her tenure in the Senate. Indeed, they note, she was originally a defendant in the case.

Here too, lawyers for the defense trot out legalisms and creaky precedents from past eras in an effort to overcome common sense, but the same basic logic from the Berger situation applies; it’s simply impossible to imagine how a person with such an obvious conflict can act (much less, be seen to act) impartially.

What’s more, in Barringer’s case — unlike Berger Jr.’s — the potential conflicts should quickly fade as her ties to the Senate recede over time.

The bottom line: The issue of what constitutes a conflict of interest for a judge can sometimes be a complicated topic — especially when judges are asked to rule on matters of public policy in states like North Carolina which elect judges in partisan elections. In the cases of Berger Jr. and Barringer, however, the conflict is so obvious that it doesn’t take an expert in legal ethics to detect a noxious odor.

Rob Schofield, director of NC Policy Watch, has three decades of experience as a lawyer, lobbyist, writer and commentator. Republished from NCPolicyWatch.org.

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