GOP judge in North Carolina resigns to prevent ‘court unpacking’ by legislature

Roy Cooper, right, is sworn in as North Carolina governor by North Carolina Supreme Court Justice Mark Martin as Cooper’s wife, Kristin, watches in the historic Capitol Building in Raleigh, N.C., Jan. 1, 2017. CREDIT: AP Photo/Ben McKeown, Pool

On Friday, Democratic Gov. Roy Cooper vetoed the latest power grab by the North Carolina legislature: an attempt to reduce the number of judges on the state’s Court of Appeals to prevent Cooper from appointing judges to it.

GOP legislators haves enough votes in the legislature to override a veto. But even if they do, a Republican judge just retired early in an attempt to thwart the “court unpacking” scheme.

Judge Douglas McCullough faced the mandatory retirement age next month, but he instead resigned early, allowing Gov. Cooper to appoint a younger judge to replace him. If Judge McCullough had stayed and the court unpacking bill became law, then the governor would not have been able to replace Judge McCullough next month. Gov. Cooper appointed Judge John Arrowood, the first openly gay member of the court of appeals.

House Bill 239 would reduce the number of justices on the state’s Supreme Court from 15 to 12, thus preventing the governor from making appointments to replace the next three judges who leave the court. Two Republican judges, in addition to McCullough, will reach the mandatory retirement age during Cooper’s term.

McCullough isn’t the only one protesting the bill. A bipartisan group of former North Carolina chief justices have also opposed the bill, claiming it would “seriously harm our judicial system.” GOP legislators have claimed that the shrinking of the court is justified by a reduced workload, but the chief justices said this argument is “premised on factual inaccuracies.” NC Policy Watch reached a similar conclusion after it dissected the court’s workload.

Ever since the state’s voters elected Cooper and a newly-liberal state supreme court in 2016, the gerrymandered state legislature has passed a series of bills to limit the powers of the other branches of government.

The legislature has passed bills that curb the governor’s authority to appoint justices to empty seats on trial courts and specialized courts. The legislature even considered a bill to gerrymander judges in Charlotte in ways that could make it harder for African American judges there to keep their seats.

The courts have been a crucial check on unconstitutional actions by the conservative state legislature. State courts have already halted some of the legislature’s power grabs. Last year, a court ruled that the legislature’s 2013 voting law targeted black voters with “almost surgical precision.”

Billy Corriher is the Deputy Director of Legal Progress at the Center for American Progress.

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