Cooper's choices

by Tom Campbell, Executive Producer and Moderator of NC SPIN, January 31, 2019.

WARNING: The following column is pretty wonkish.

NC Supreme Court Chief Justice Mark Martin surprised everyone by announcing he was stepping down at the end of February to become the Dean of Regent University’s School of Law. Many ITB (inside the beltline) pundits speculated as to whether there were health, conflicts or other issues forcing the retirement.

The likely explanation is that Justice Martin has been on the court for 20 years, has reached his peak in earning and retirement benefits and wasn’t likely to remain as Chief Justice until mandatory retirement age of 72, another 17 years. Martin was rumored to be in line for a federal judgeship (4^thCircuit Court), however that didn’t happen. Some had wanted him to become the new chancellor of Western Carolina University, his alma mater. But with two children in college and the prospects of another productive 15-20 years, his decision to step down begins to make sense.

North Carolina is losing a fine justice. He has been a good Chief Justice, stimulated some innovative thought and guided the court through some highly partisan times. Martin has served our state well, but without question his resignation set off a chain of events with real political and judicial implications.

Governor Cooper has two appointments to make. The first is obviously Chief Justice. Many are speculating that appointment might be Justice Paul Newby, because he has seniority on the Supreme Court and it has been a tradition to elevate the most tenured Justice in instances of vacancy due to age, retirement or death.

Tradition, but not a requirement. Governor Jim Martin broke with that tradition when he first appointed Rhoda Billlings to the Supreme Court in 1985, after the resignation of Justice Earl Vaughn. One year later, when Chief Justice Joe Branch retired, Martin elevated Republican Billings to become Chief Justice. The longest tenured Justice at that time was Democrat Jim Exum but Martin bypassed Exum to name Billings. The next year Exum defeated Billings to become Chief Justice.

Few expect Cooper to follow the tradition now. Newby, a Republican, is known to be more partisan and Cooper would catch a lot of grief from the Democratic Party for naming Newby. Insiders speculate Cooper will name Justice Robin Hudson to become Chief.

Whoever is named Chief Justice will have to stand for statewide election in 2020, and there are two reasons why she might not want another statewide election. The first is the memory of what happened with Justice Billings in 1986, but perhaps an even larger factor is age. Hudson would be required by law to retire in 2024, at age 72, and it is improbable she would want to wage what promises to be a highly contested and expensive statewide election to only serve three of the eight years of the term. Regardless, many believe she will be named Chief, even if only until January 2021.

The Chief Justice appointment is critically important for many reasons, among them the fact that the Chief Justice appoints and supervises the Director of the Administrative Office of the Courts (AOC), the agency that runs our court system.

Cooper’s second appointment will be to fill the open position as Supreme Court Justice.

Currently our Court of Appeals has 15 Judges, 8 Republicans and 7 Democrats. The legislature mandated that number be reduced to 12 judges. The next three judges who retire or resign will not be replaced in order to meet that requirement. If Cooper names a Republican from the Court of Appeals that court’s new makeup would be 7 Republicans and 7 Democrats until 2020. It would also maintain the Supreme Court’s current 5-2 spread of Democrats to Republicans. If, on the other hand, Cooper appoints a Democrat from the Court of Appeals it would reduce that court’s margin to 8 Republicans and 6 Democrats, while increasing the makeup of the Supreme Court to a 6-1 margin of Democrats to Republicans. How important is it to have numerical advantage for your party?

The term of Chief Court of Appeals Judge Linda McGee, a Democrat, expires in 2020, as does fellow Democrat Wanda Bryant and Republican Chris Dillon. If Cooper appoints one of them it helps reduce the number on the second highest court. But what if the Governor decides to appoint another member, such as perhaps Democrat Mark Davis? If you believe party affiliation has an impact on the decisions made by our appellate courts these numbers could be important.  

You can be sure that Governor Cooper, his staff and even his political party are pondering these chess moves in deciding how to replace Chief Justice Mark Martin..