Gov. Roy Cooper wasted no time responding to his latest courtroom loss. “With the makeup of this three-judge panel, we fully expected this result,” Cooper said, within minutes of learning last week about the N.C. Court of Appeals’ opinion. The court had affirmed the state Senate’s authority to offer “advice and consent” on Cooper’s Cabinet appointments.
“They essentially kicked it upstairs to the Supreme Court,” Cooper said. “We believe that these arguments are sound and that these laws will end up being declared unconstitutional by the state Supreme Court.”
These comments deserve more scrutiny. First, the governor references the panel’s “makeup” in explaining why he and his team expected to lose. Unless there’s something more specific that Cooper declined to share about the records of Appeals Court Judges Rick Elmore, Donna Stroud, and John Tyson, one presumes that the Democratic governor is referring to their Republican voter registration.
In other words, Cooper appears to have accused judges with Republican affiliations of issuing a partisan ruling favoring a Republican-led state Senate over a Democratic chief executive.
That’s possible. But the Appeals Court’s decision upheld an earlier ruling from another three-judge Superior Court panel. That panel consisted of two Democrats and a Republican. Both panels ruled unanimously.
The unsigned Appeals Court opinion quotes heavily from the trial court panel’s findings.
“The panel found ‘advice and consent is an exclusive function of the legislative branch,’” the appellate judges note of the trial court’s work. “The panel further found the executive appointees at issue ‘are the most important appointments a governor makes, as they are appointed to lead the state’s principal departments, said departments having been created by act of the legislative branch.’”
One other excerpt from the Appeals Court opinion directly transcribes the trial court’s findings. “A Legislature that has the authority to create executive agencies also has the authority to require legislative advice and consent to fill the leadership roles in those agencies, absent constitutional limitations to the contrary.”
A reader scouring the 14-page Appeals Court opinion will not find a single sentence in which the appellate panel amends or contradicts any finding from its trial-court counterparts.
To the contrary, the Appeals Court concludes: “The three-judge Superior Court panel correctly held the governor did not meet the high burden to show beyond a reasonable doubt the General Assembly is without authority to require senatorial confirmation of the governor’s appointed statutory officers.”
In the next paragraph, appellate judges offer another specific endorsement of the original court findings. “The three-judge Superior Court also correctly held the governor failed to show beyond a reasonable doubt that the Advice and Consent Amendment violates the separation of powers clause of the Constitution of North Carolina by hindering the faithful execution of his duties as governor.”
It’s hard to square appellate judges’ emphatic endorsement of the trial court’s work with the governor’s implication of partisan bias. If the Appeals Court acted based on partisan motives, those same motives must have informed the conclusions of the Superior Court panel — including its two Democrats.
Back to Cooper’s original comments: It’s also worth exploring his notion that the Appeals Court “essentially kicked” the case “upstairs.”
Appeals Court decisions get “kicked” automatically to the N.C. Supreme Court only if the three-judge appellate panel issues a split ruling. But the Appeals Court ruled unanimously in this instance, just as the original trial court ruled unanimously.
Both panels reached the same conclusion. Neither panel referenced any ambiguity about its findings. Neither offered any request for constitutional guidance.
Cooper certainly has the right to ask Supreme Court justices to review the case. Because of the Appeals Court’s unanimity, the state’s highest court faces no obligation to accept the governor’s request.
If Supreme Court justices take the case, after six other judges — affiliated with both major parties — ruled emphatically against Cooper, accusations of partisan bias might be warranted.
Why? The seven-member Supreme Court has four Democrats and three Republicans. The Democrat Cooper notes with confidence his belief that the high court will declare the advice-and-consent rules unconstitutional.
Such a ruling would represent a complete reversal of two previous rounds of judicial deliberation and analysis. It would be tough to fault right-leaning partisans if they blamed a decision favoring Cooper on the “makeup” of the Supreme Court.
Mitch Kokai is senior political analyst for the John Locke Foundation.