ELLIOT: Cooper whiffs big with appeals court choice

Madeline Gray—
Gov. Roy Cooper. FILE PHOTO.

Since his middle-of-the-night swearing in on Jan. 1, Gov. Roy Cooper has told North Carolinians that he is too respectful of the judiciary to play partisan games with it. Thus he opposed the Republican effort to reinstate party labels for some judicial seats, and he has opposed GOP efforts to let attrition shrink the Court of Appeals from 15 judges to 12.To be sure, voters would need short memories to believe that his motivations were pure rather than merely convenient. Both the removal of party labels and the expansion of the appeals court were orchestrated for partisan reasons: by Democrats, for Democrats. Cooper should know, since he was one of the architects of the latter strategy when he was a member of the General Assembly. But at least it sounded good to newcomers and those who don’t know their state history.On April 24, Cooper seemingly continued his work for a nonpartisan judiciary when he made a deal with sitting Court of Appeals Judge Doug McCullough. Under a bill that Cooper recently vetoed, when McCullough reached mandatory retirement age in June, his seat would not have been filled. Since the General Assembly was almost certain to override the veto, the scheme allowed Cooper to appoint someone to the seat who would not age out so soon, frustrating legislative efforts to shrink the court.McCullough is a Republican, so his agreeing to the plan set Cooper up for a big win. The governor could make himself look like the bigger man, maintaining the number of judges on the court as a matter of principle. (McCullough said in public statements that, since the Court of Appeals works in teams of three to hear cases, it didn’t make logistical sense to have 14 or 13 judges. Apparently it didn’t occur to McCullough — who was about to retire anyway — that the law was written that way to avoid having to cut any judge’s tenure short.)But just when everything was moving Cooper’s way, he managed to bungle it. Instead of appointing a Republican or a politically unaffiliated lawyer to the bench, Cooper appointed John S. Arrowood, a Charlotte lawyer originally from Burnsville in Yancey County. Arrowood has been a registered and active Democrat for decades. Arrowood certainly has an impressive resume, having been on staff and served as a judge on of the Court of Appeals as an appointee of Gov. Mike Easley. He has also served on numerous state-level commissions and boards. There are few professions with more politically astute and active members than the legal field. And if you were building a list of Democrats with unassailable credentials for appointment, Arrowood would be an excellent choice. In normal circumstances Cooper, as a Democrat, should be expected to appoint Democrats. (Elections have consequences, even if you win by less than 0.2 percent of the vote.)But here, Cooper had a once-in-a-lifetime chance to show he was above partisanship and tweak Republicans in the General Assembly at the same time. Appointing a Republican or an independent would have been a masterstroke. It probably would have taken so much wind out of the legislature’s sails that his veto would have stood. It would have been the first unmitigated win of Cooper’s tenure as governor.Think about it. If Cooper had appointed a Republican, he could have said: “The integrity of the 15-member court is sacred. I voted to increase the court to 15, that was the right thing to do then and it is still right.”If Cooper had appointed an independent, he could have said: “The nonpartisan character of the court is sacred. Because of the special circumstances of this vacancy, it was important not to let a political spoils system come into play.”But instead, Cooper appointed a Democrat, saying “Judge Arrowood was at the top of the list.” I didn’t make that last one up. Cooper said that — verbatim. Presented with a golden chance to rise above the partisan game, Cooper blew it. Now, he looks just as petty as the legislature — or, for those who know the history of the judiciary in North Carolina, even more petty. Circumstances threw Cooper a belt-high fastball, and Cooper whiffed. The game goes on. Drew Elliot is a member of the North State Journal’s editorial board, separate from the news staff. Unlike other newspapers, the North State Journal does not publish unsigned editorials; the author or authors of every editorial, letter, op-ed, and column is prominently displayed. To submit a letter or op-ed, see our submission guidelines.