That was fast. No sweet talk or brief honeymoon. The shotgun union between Gov. Roy Cooper and the Republican legislature went straight from the altar to the courts and bitter custody fights over government’s favorite child: Political Power.
Cooper’s legal challenge to recent GOP legislation adds to the growing list of hot button issues which our representatives cannot resolve among themselves. Increasingly, we seem to be turning to “the courts” to settle … everything.
Courts should be the peaceful equivalent of war; a last resort, when all political efforts have failed. In our divided nation and state, where delegitimization is the new abnormal, they are increasingly becoming the arbiters of policy.
This is another sad sign of the failure of our leaders to do their job, to work together and find common ground – and to accept defeat when they don’t have the votes. Instead, our elected officials – spurred on by advocacy groups who make their living launching lawsuits – are too often like children in a sandbox who need the teacher to settle every dispute.
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Government by litigation is a sign that the cancer metastasizing through our body politic is spreading to our nation’s most essential organ: the rule of law. When elected officials routinely turn to the courts to settle issues – when they frame policy disputes as fundamental constitutional issues – they politicize and thereby undermine in the legal system. This problem spreads when the losing side inevitably casts judicial decisions it dislikes as the result of crooked partisanship.
Our elected leaders should consider this dangerous damage before they head to court – a sometimes necessary move. It’s true that our legal system has always been a balancing act between principle and politics; despite Justice Roberts’ claim, judges are not simply umpires who call balls and strikes. But in our current environment, they must work doubly hard to explain why their decisions are based in the law, not their partisan wishes.
In a nation where so many institutions are mistrusted, we cannot afford to add our courts to that list.
In the meantime, our representatives should remember the mantra of my late journalism professor, Fred Friendly: The difference between what you have the right to do and the right thing to do.
Here in North Carolina, it seems clear that Republicans were within their legal rights last month when they passed a law requiring Senate confirmation of the Governor’s cabinet picks. This move also seems wise. It is alarming that unelected officials with tremendous power have not been required to explain their views to the public.
Do North Carolina Democrats decrying this law believe Donald Trump should be able to name his cabinet without hearings or a vote?
Cooper’s challenge of this aspect of law is bad enough; directing his nominees to assume office before they are confirmed is misguided and, perhaps, illegal.
Nevertheless, the Republicans did the right thing for the wrong reason: they were driven solely by politics, not principle.
This is also true of another one of their moves Cooper is challenging in his lawsuit, the effort to slash the number of political appointees the governor can make to managerial and public policy positions from up to 1,500 to about 425.
In fairness, that is far more positions than the last Democrat Governor, Bev Perdue, could fill just four years ago – Republicans greatly expanded it to accommodate GOP Gov. Pat McCrory. Democrat claims that this is tantamount to a coup are reckless.
But it was wrong. What they should have done is undertaken a thorough review to determine how many people our duly elected governor needs to fulfill his duties. That should be the magic number.
The legislature may have another opportunity to strike a balance between politics and policy in the coming weeks when the United States Supreme Court considers a challenge to our state’s gerrymandered voting districts.
It is quite possible the high court will let those districts stand. If so, our leaders should not interpret that as a seal of approval but as a rueful recognition that states enjoy great leeway in drawing such boundaries, even when they are nakedly partisan.
Government by litigation will not fix our broken politics. It is a symptom, not a solution.
Contributing columnist J. Peder Zane can be reached at jpederzane @jpederzane.com.