As Shakespeare’s King Lear famously put it, “How sharper than a serpent’s tooth it is to have a thankless child.” Top Republicans in the N.C. General Assembly now might well be muttering, “How sharper than a serpent’s tooth it is to have a Republican judge who stands on principle!”
Sure, Democratic Gov. Roy Cooper had blistered them in vetoing a bill to shrink the Court of Appeals. But Judge Douglas McCullough, who timed his retirement with precision so that Cooper could name his replacement, delivered a rebuke to his fellow Republicans that would have been venomous even if he hadn’t uttered a word.
“I did not want my legacy to be the elimination of a seat and the impairment of a court that I have served on,” McCullough told The News & Observer after the surprise announcement that he was stepping down.
The disclosure on April 24 came some five weeks before McCullough would have reached the mandatory judicial retirement age of 72. And tellingly, it came hours before the legislature could convene with a chance to override the veto Cooper had cast three days earlier. The governor took advantage of that window of time to appoint John Arrowood, a Democratic former Court of Appeals judge, to McCullough’s seat.
If McCullough had stayed in office until his birthday – with the veto in the meantime being overridden – then the court’s membership upon his departure would have been capped at 14 judges instead of the current 15. There no longer would have been a vacancy for the governor to fill, and he would have lost the chance to put a judge of his choice on the state’s second-highest court.
That’s exactly what legislative Republicans were hoping for when they enacted House Bill 239 earlier in April. What’s more, the resulting law would eliminate two additional judgeships on the court – not coincidentally, with two other Republican judges also due to age out during Cooper’s term. Because of McCullough’s public-spirited move, the court will maintain its current complement of 15 judges at least for now. Above and beyond any implications for the court’s partisan divide, that strikes a blow in support of the court system’s efficiency and integrity.
Panel problems
If McCullough had followed the course leading to maximum advantage for his party, his path would have been obvious. All he needed to do was hang tight until his statutory retirement age.
With Cooper’s veto in the meantime being overridden – as it was by party-line House and Senate votes on April 26 — the court would have been put in an awkward spot. That’s what McCullough was getting at when he mentioned the “impairment” he plainly didn’t want to be in any way responsible for.
The court parcels out cases to panels of three judges. Downsizing to 14 members, or to any number not divisible by three, would disrupt the process of assembling the panels. There would be no configuration by which all the court’s judges were simultaneously assigned to a panel and hearing cases.
Downsizing all the way to 12 judges, as envisioned by the bill, would simply pile more work on the remaining four panels. The quality of justice would be bound to suffer.
There are those who don’t think our judges work hard enough, the remedy being to force them to keep their noses to the grindstone. The reality is that, in most cases, judges cope with formidable workloads – made even more daunting when what’s often at stake are decisions that can change people’s lives.
Backers of H.B. 239 say it reflects a decline in the number of cases coming to the Court of Appeals, although the extent of any such decline is a matter of dispute.
It also should be noted that access to the upper-level courts is an ongoing problem, primarily because of the costs. A diminishing case load wouldn’t necessarily mean that North Carolinians were engaged in fewer situations where the wisdom of Solomon would come in handy.
In any event, it appears that each judge on the appeals court is now responsible for an average of about 100 rulings per year — rulings made after reviewing the parties’ briefs and the lower court record, and often after the judge’s panel has prepared for and conducted oral arguments.
Appellate judges’ published opinions sometimes need to be lengthy and complex. To subject these judges to the equivalent of a factory boss’s old-fashioned assembly line speed-up isn’t a problem only for them. It means people who come before the court expecting their appeal will receive a careful, conscientious review might have to settle for rulings reached in haste and under even more than the usual amount of stress.
His own man
McCullough, a former federal prosecutor, was recognizably conservative during his 14 years on the Court of Appeals. But he also showed an independent streak and did not come across as an ideologue. In that sense it was perhaps not so surprising that he allowed Cooper to fill his seat, predictably with a Democrat – a decision that the hard-edged partisan Republicans who rule the legislature must have seen as heretical.
In fact, protecting the Court of Appeals’ partisan margin while intensifying legislative efforts to restrict Cooper’s powers clearly was the main motive behind H.B. 239’s passage.
By virtue of five seats won by Republican candidates in November, the court prior to McCullough’s retirement had 11 Republican members and four Democrats. If the total number of seats remained at 15, and if Cooper got to name three replacements for Republicans who had aged out, the GOP margin would shrink to 8-7.
The party’s chiefs look to the courts to turn back numerous constitutional challenges to laws passed during their recent years of dominance. They would much rather have a partisan split of 8-4 rather than 8-7. That’s what they figured they’d get once seats on the court dropped from 15 to 12.
Judge Arrowood’s appointment puts the margin at 10 Republicans and five Democrats, with two GOP retirements pending. Because of the veto override, it appears settled that those seats plus a third will vanish if and when their occupants leave the court before their terms have expired.
The Republicans’ efforts to reinforce their party’s stamp on the courts have included a new law requiring all the state’s judicial elections to be conducted on a partisan basis. That is a cynical and unnecessary move making even district court judges run in party primaries and tempting voters to consider candidates’ stands on issues that have nothing to do with the everyday business of the courts or the candidates’ professional qualifications. Cooper cast his first veto in opposition to that law, but the veto didn’t stand.
Now another bill in a similar vein has surfaced. House Bill 335 would restrict what currently is the governor’s authority to fill vacancies on the state’s upper-level courts and in district attorneys’ posts. The selection would have to be made from among people recommended by the political party of the judge or prosecutor who had left office before the end of his or her term.
When they issued their recent broadside against legislative attempts to monkey with the courts for partisan advantage, four former chief justices of the Supreme Court hadn’t seen H.B. 335. But they were mindful of the bills shrinking the Court of Appeals and making all judicial elections partisan.
Regarding the appeals court, Democrats Burley Mitchell, James Exum and Sarah Parker, along with Republican I. Beverly Lake Jr., had this to say: “The legislative sponsors claim that the reduction is needed as the judges have had such a significant decline in their case load that a 20 percent reduction in judicial manpower is required. Nothing could be further off the mark.” They added, “Any decline in cases filed has been statistically insignificant.”
Judge Doug McCullough, to his credit, wasn’t going to help his fellow Republicans re-engineer the Court of Appeals in hopes of advancing their partisan interests while dissing the interests of people who may have no choice but to turn to the courts in their search for justice.
