Sen. Berger crusades for ‘the rule of law’ after years of undermining it for political gain

Republican Senate leader Phil Berger announced last week he’s all in for the fight against “promoting” Critical Race Theory in North Carolina public schools. Following Donald Trump’s cue, Berger declared: “I oppose it, and I will combat it with everything I have.”

So the all-white Republican House and Senate caucuses of the General Assembly – which have been repeatedly found by federal courts to have intentionally and pervasively discriminated against Black Tar Heels – will define the acceptable portrait of race to be promoted in our classrooms. That sounds shocking perhaps. But we’ve become accustomed to ambitious suppression by the “freedom” party. It’ll soon be open season on North Carolina teachers.

And Berger won’t stop there. He’ll “tweak” House Bill 324 to add five more prohibited concepts (for a total of 13). Here’s my favorite new promotional ban:

“The rule of law does not exist, but instead is a series of power relationships and struggles among racial or other groups.”

I hope the new no-anti-rule-of-law provision will be amended to add the following explanatory footnote:

“Drafted and sponsored by Sen. Phillip Berger – the most bold, persistent, and successful manipulator of the rule of law seen in North Carolina in a half-century.”

The American Bar Association and the website of the United States Courts define the “rule of law” as the principle under which all persons are held accountable to laws that are publicly promulgated, equally enforced, and adjudicated by independent judicial tribunals. Interesting. Independent courts?

And what, we might ask, is the record of Berger and his friends on an independent judiciary in North Carolina? Hold your breath.

Over the last 10 years, Republican lawmakers have required that judges’ races be made partisan. They abolished public funding for judicial electoral campaigns. They passed laws to limit and channel judicial review of the legislature’s enactments. Republican legislators manipulated the size of the N.C. Court of Appeals for partisan gains. They passed a statute to shield an incumbent Republican Supreme Court justice from being required to stand for reelection. They directly interfered with other individual Supreme Court justice races to aid Republican candidates. They canceled the judges’ 2018 primary election. They gerrymandered the districts of disfavored Wake and Mecklenburg county judges. And they menaced other disobedient judges with potential legislative retaliation.

There’s more. Berger and his buddies attempted to dramatically constrict the governor’s judicial appointment powers. They threatened all state judges with a proposal to change to two-year electoral terms – shortest in the nation. They moved to intimidate judges from protecting the rights of low-income criminal defendants through the waiver of oppressive fines and fees. And they intervened statutorily to put Berger’s son at the top of the ballot in a Court of Appeals contest. Former Republican state Supreme Court Justice Robert Orr described the moves to change terms and appointment procedures as part of “a continued effort to try to intimidate the judiciary.” If Berger actually believes in independent courts, it’ll come as a surprise to every lawyer in North Carolina.

So, apparently Berger thinks it’s fine, even delightful, to wage war against the rule of law through a legislative crusade, and life’s work, in the state legislature. But it should be made illegal for a North Carolina teacher to explore or “promote” what Berger is doing in her classroom. There’s no greater proof that “the rule of law” doesn’t fully exist in North Carolina, but is instead merely “a series of power relationships and struggles…among groups,” than Phil Berger’s legislative record. Maybe it’s not CRT, it’s CYA.

Contributing columnist Gene Nichol is a professor at the University of North Carolina School of Law.

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