One of the bright spots in an otherwise disappointing election cycle for Democrats came in North Carolina, when Roy Cooper narrowly ousted one-term Republican incumbent Pat McCrory. Cooper hasn’t had much of a chance to enjoy it, though. The Republican-controlled state legislature has been tripping over itself in an effort to strip Cooper of his powers. Their latest move came when the legislature tried to shrink the size of the state Court of Appeals in order to keep Cooper from nominating replacements for retired judges. However, a Republican judge on the court was having none of it. He resigned in order to allow Cooper to appoint his replacement while his former seat still existed.
Due to one of the most brutal gerrymanders in the nation, the Republicans maintained supermajorities in both houses of the General Assembly even as Cooper defeated McCrory. They’ve used those supermajorities to engage in a remarkably ham-handed effort to strip Cooper of many of his powers. In December, for instance, they passed measures that took away the governor’s power to appoint a majority of the state elections board and state ethics commission, and also significantly limited the number of state employees subject to gubernatorial patronage. In February, a three-judge panel declared those measures unconstitutional.
But the General Assembly hasn’t given up. On April 11, the legislature passed House Bill 239, which would have gradually reduced the number of seats on the North Carolina Court of Appeals from 15 seats to 12. Under this bill, the next three vacancies on the court would simply not be filled, and the seats would be abolished. Much of its work would have been parceled out to the state Supreme Court.
Cooper vetoed the bill on Friday morning. He saw the bill for what it was–a Republican attempt to stack the court in its favor even though the GOP already had a 10-5 majority on the court. He was also concerned that a smaller court, and the resulting increased workload, would potentially delay timely appeals. On his Medium blog, Cooper said that a bipartisan group of former state supreme court judges feared that the bill risked harm to North Carolina’s judicial system.
On paper, the Republicans have than enough numbers to override Cooper’s veto. But they reckoned without appeals court judge Douglas McCullough, a Republican who has served on the court since 2011. McCullough previously served on the court from 2001 to 2009, and before then worked as a federal prosecutor in the Eastern District of North Carolina.
Had the law taken effect, McCullough’s seat was likely to be the first to be abolished. In North Carolina, state court judges at all levels–district court, superior court, the Court of Appeals, and the Supreme Court–must retire on the last day of the month of their 72nd birthday. Over the weekend, with just over a month before his mandatory retirement, McCullough notified Cooper that he planned to step down early.
McCullough formally resigned on Monday morning. Just 15 minutes after McCullough’s resignation took effect, Cooper appointed John Arrowood, a fellow Democrat, to McCullough’s former seat. Cooper said that Arrowood had been “at the top of the list” for an appointment to the Court of Appeals, so it was only natural that he got “a surprise phone call” on Sunday afternoon. In making this move, Cooper trolled the GOP on two counts. Not only is there now one fewer Republican on the court, but Arrowood is that court’s first openly gay member.
While McCullough’s formal resignation letter may have been only one paragraph long, he was unsparing about why he resigned when he spoke with The (Raleigh) News & Observer.
“I did not want my legacy to be the elimination of a seat and the impairment of a court that I have served on.”
In another swipe at his own party, McCullough recalled that during the tenure of Jim Martin, the only North Carolina Republican to serve two full terms as governor, the Democrats never tried to interfere with Martin’s power to make judicial appointments. He also denounced the bill as a logistical nightmare waiting to happen. The Court of Appeals hears cases in three-judge panels, and McCullough complained that a court that was not divisible by three would be “administratively awkward.”
Apparently the GOP didn’t consider that minor detail. In the name of neutering Cooper, the legislature would have put North Carolina’s justice system at risk. That’s why this bill would have been an outrage even if this a Democratic legislature trying to kneecap a Republican governor.
McCullough’s principled stand has been widely praised on Twitter.
Truly a commendable and honorable move by Judge Douglas McCullough to put the good of the court above partisanship. https://t.co/vAR1A6vBuH
— David Donovan (@NCLWDonovan) April 24, 2017
Republican Judge J. Douglas McCullough, you are the man. There needs to be more people like him doing what's right. #TheResistance
— Marcella (@TranceRevolved) April 25, 2017
Thank you Judge J. Douglas McCullough. Very honorable in a time when honor & integrity have lost its way. https://t.co/kCGtc21rVG
— ?Denise? (@nised72) April 25, 2017
Thank you North Carolina Judge Douglas McCullough!! We need more people of principle like you!!!!
— Elise A. Bloustein (@ebloustein) April 25, 2017
The only way to stop the GOP from undermining democracy was for a GOP judge with integrity to resign. So he did. https://t.co/gS9arHxGXi
— Kurt Eichenwald (@kurteichenwald) April 25, 2017
— jksPixie (@jksPixie) April 25, 2017
Great story. Republicans and Some Dems could learn from Judge J Douglas McCullough.
— jess (@gibsonsg50) April 25, 2017
He puts the Honorable In Honorable Judge J. Douglas McCullough
— CourtRoomInYourMind (@nobiskits) April 26, 2017
Before Monday, McCullough was best known for prosecuting a marijuana smuggling case that ultimately led to Manuel Noriega being indicted on drug trafficking charges. That would have been a sterling legacy by itself. Now, his true legacy will be taking a stand for getting the politics out of government. Bravo, sir.
(featured image: screenshot via UNC-TV)