TAR HEEL VIEW: Attorney general is state’s lawyer, but also an arbiter

Is Attorney General Roy Cooper abandoning the job he has to run for the job he wants?

Republican Gov. Pat McCrory and state Sen. Buck Newton are again dogging the Democratic gubernatorial candidate over his alleged dereliction of duty. Cooper said this week his N.C. Department of Justice won’t appeal the 4th Circuit ruling that struck down the state’s voter identification law.

“He refuses to appeal North Carolina’s voter ID case that was overturned by the political appointees of Barack Obama,” Newton said Thursday. “Why do we have an attorney general if he’s not going to do his job?”

Newton, a Wilson attorney vying for the seat Cooper is vacating in his bid to move into the Executive Mansion, made the remark during GOP vice presidential candidate Mike Pence’s Raleigh campaign stop. He’s taken nearly as many public swipes at Cooper as his own opponent, Democratic former state senator Josh Stein.

Cooper first made waves this spring when he announced he would not defend House Bill 2, the infamous and much-maligned “bathroom bill,” from a lawsuit brought by U.S. Attorney General Loretta Lynch.

The attorney general is tasked with representing the state in any lawsuits to which it is a party. Republican rivals were quick to castigate Cooper for refusing to carry out his duties in the HB2 flap, and that criticism has been amplified following his decision to drop out of the voter ID defense.

While legal scholars are in agreement that part of the attorney general’s job is to defend state laws he or she may dislike or disagree with, there is some consensus that there’s an opt-out when the AG deems a law to be unconstitutional.

Courts ultimately determine constitutionality, but attorneys general routinely make such judgment calls and issue non-binding advisory opinions to state and local governments. They may be the lawyers who represent the state in court, but they have more autonomy than hired guns from the realm of private practice. An AG’s considered legal opinion carries at least some weight.

We are troubled by the notion that an attorney general would choose not to defend a law championed by members of an opposing party in an election year. But we’re not convinced Cooper’s motivation is purely political.

The hired lawyers standing in for Cooper at legislative leaders’ behest struggled to offer a coherent defense of HB2 in U.S. District Judge Thomas Schroeder’s Winston-Salem courtroom on Monday. Butch Bowers, who represented the state of North Carolina, admitted in open court that the beleaguered bathroom bill can’t be enforced.

“Then why have it?” Schroeder replied, a stinging rhetorical question for which there is no reasonable answer. A toothless law is little more than a gussied-up policy statement.

HB2 “requires” people to use the restrooms matching their biological gender, but its supporters admit there’s no practical way to prevent a transgender person from using facilities intended for the sex with which he or she identifies. We shudder to think of the heavy-handed enforcement mechanisms bill sponsors left out. It doesn’t take a brilliant legal mind to realize strip-searches or birth certificate checks would flagrantly violate the Fourth Amendment.

As for the voter ID law, which the 4th Circuit Court of Appeals found to have targeted African-Americans with “almost surgical precision,” Cooper’s office participated fully in its defense. Cooper simply drew the line at taking the case to the U.S. Supreme Court.

There’s no rule demanding an attorney general exhaust all appeals. With apologies to Kenny Rogers, a good lawyer knows when to hold ‘em and when to fold ‘em. Perhaps it isn’t that Cooper refuses to defend a law he doesn’t like; instead, he won’t throw good money after bad to fight a losing battle.

Cooper envisions the office of attorney general as a post whose occupant actively interprets the law, analyzes precedent and court opinions and makes strategic decisions on which cases to pursue, even if it ruffles some feathers.

McCrory and Newton seem to believe the role should be filled by a good soldier willing to suspend personal judgment, toe the legislature’s line and tilt at every last legal windmill.

The Wilson Times

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