North Carolina governor seeks to reclaim judicial appointment power at top state court

The governor has selected appointees to fill appellate vacancies for over 150 years.RALEIGH, N.C. (CN) — North Carolina Governor Josh Stein argued before the state Supreme Court Tuesday that a law limiting his selection of appellate appointments is unconstitutional.The state’s General Assembly passed a law framed as hurricane relief during its 2024 lame duck session, which also reduced the authority of incoming Democrats, including Stein. Prior to the change, the governor could fill a vacancy in the state Supreme Court or Court of Appeals with a lawyer from his own political party. Now, he’s required to choose from a list of three candidates provided from the departing judge’s political party.Representing Stein, attorney Sarah Boyce argued the governor alone has the authority to fill appellate vacancies, and the legislature can’t impose limitations that ultimately allow it to choose who fills the vacancy. The authors of the North Carolina Constitution specifically allowed the General Assembly to fill district court vacancies, she noted, and made the choice to leave appellate vacancies up to the governor. For 150 years, the legislature recognized it could not impose qualifications on the governor’s appointment power.D. Martin Warf, counsel for defendants Speaker of the House Destin Hall and state Senate leader Phil Berger, argued the legislature has the power to impose limits on the governor’s selection. He insisted nothing in the state constitution says he has a right to choose anyone he wants or prohibits the General Assembly from creating a pool of nominees.“The governor still makes every appointment,” Warf said. “The only question is if article 4, section 19 explicitly prohibits the General Assembly from defining the pool he collects from. It does not.”Associate Justice Allison Riggs pointed out how voters overwhelmingly shot down a constitutional amendment that would have created a judicial merit commission to make recommendations for the vacancies, with about two in three opposing it.“What seems to me the two things that changed between 2018 and now is the composition of this court, and the voters said no when represented by the legislature that the governor picks this, that this is the governor’s job, the voters said no,” said Riggs, a Democrat. “So what else changed besides that?It is hard to speculate why the voters shot down the amendment, Warf replied, and filling a vacant seat with a jurist from the same political party maintains the court’s status quo until the next election.“If the Republican leaves, the Republican comes in. If a Democrat leaves, a Democrat comes in. If an unaffiliated voter comes in, then the governor has the complete choice as to who they can appoint,” he said. “The voters’ partisan choice is honored until the voters speak again.”The limitations go too far, Boyce countered.“What the legislature has done is effectively given the governor’s appointment power to the political operatives who run the executive committees of the Democratic and Republican parties,” she said. “And if you accept their position, they can give it to anyone else. They can give it to this court. They can keep it for themselves. They can give it to the Secretary of State even though that is flatly incongruous with the plain text of the constitution.”The state constitution prohibits the legislature from changing the process to fill appellate vacancies, Stein argued in his brief, and eight years ago the legislature admitted that unless the state constitution was amended, the governor had the “sole” authority to fill these vacancies, in the text of the constitutional amendment posed to the voters.Hall and Berger maintain the state constitution still gives the governor a choice to fill the seat, and there is no constitutional requirement that he picks whoever he’d like.“The constitution requires the General Assembly to create the method for choosing district court vacancies, but it does not require it to adopt laws regarding other judicial vacancies,” they argue in their brief. “The absence of a requirement to act, however, is not equal to a prohibition against acting.”Stein, who filed suit in early 2025, found success before a panel of Raleigh judges, before the state Court of Appeals ruled against him in January.Supreme Court races, which had previously been nonpartisan from 2004 to 2016, became partisan again in the state in 2018. Democrat Associate Justice Anita Earls held onto her seat in last week’s election, but Republicans retain a 5-2 majority.The Supreme Court didn’t say when they planned to rule.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads