Court makes initial ruling against NC Senate confirmations

Three judge panel to issue final ruling Friday, first Senate confirmation meeting still on schedule for Wednesday

Eamon Queeney—The North State Journal
Governor Roy Cooper

RALEIGH — Though a final order has not yet been released by a Superior Court, strong reactions from Republican leaders of the North Carolina General Assembly indicate that a three judge panel has temporarily ruled against the N.C. Senate holding confirmations hearings of Cooper appointments. A full hearing on the preliminary injunction is scheduled for Friday.At a hearing Tuesday, the judges heard Cooper attorneys argued that the confirmation process equated to essential veto powers of the governor’s cabinet choices, while lawyers for Speaker Tim Moore and Senate Leader Phil Berger that the authority to provide advice and consent is specifically delegated in the state constitution and does not interfere with the governor’s ability to nominate, supervise, or control his appointments.A committee meeting to consider Larry Hall as Secretary of the N.C. Department of Military and Veterans Affairs is scheduled for 11:00 Wednesday, which at the time of print remains on the calendar.In response to the judicial developments, the Moore and Berger released a joint statement condemning the what they consider an overreach by the court.”In a gross misreading of the Constitution and a blatant overstep of their Constitutional authority, three Superior Court judges attempted to dictate to the legislature when it could or could not hold committee meetings and what it could or could not consider in those meetings,” stated the letter from lawmakers. “This unprecedented move would be like the legislature telling a judge what jurors to pick to decide a case. Judges are not legislators, and if these three men want to make laws, they should hang up their robes and run for a legislative seat. Their decision to legislate from the bench will have profound consequences, and they should immediately reconvene their panel and reverse their order.”On Monday, Cooper sent a letter to Senate Leader Phil Berger (R-Rockingham) reiterating his request that the Senate delay the hearings until the court issues a decision in the case.”Despite the pending lawsuit and despite my request for delay until the lawsuit is decided, the Senate has scheduled my appointees to appear for confirmation hearings beginning this Wednesday, February 8th,” reads Cooper’s letter.Eight of 10 appointments have been sworn in to office and are on the job despite not being formally presented to the state Senate. Appointments for the N.C. Department of Revenue and the N.C. Department of Information Technology have not yet been made.Cooper went on to argue in the letter that senatorial advise and consent only applies to constitutional officers, and not to cabinet secretaries. The letter also points to state law that doesn’t require the governor submit the names of secretarial appointments until May 15 of this year.”Consistent with that,” the letter continues, “I understand that my lawyers and those representing you and Speaker [Tim] Moore have proposed to the court a schedule which would provide for a hearing and decision by the panel in early March of this year. The opportunity still exists to avoid needless confrontation and court proceedings over a scheduling issue. But with hearings set to begin on Wednesday, that window is rapidly closing.”However, Berger’s Deputy Chief of Staff Amy Auth issued a press statement Monday that said Cooper’s attempt to delay was “disingenuous.””He said he wants to avoid a legal fight, but has already gone to court and asked for a last-second temporary restraining order,” wrote Auth. “Earlier this [Monday] morning, before we received his letter at noon, our lawyers were told the governor has asked the court to give him an emergency telephone hearing tomorrow afternoon.”Berger said the confirmation process was important to bring consultations with the governor’s appointments out from behind closed doors. A convening of the Senate Nominations Committee last week outlined the process for confirmation hearings as Republican leaders emphasized the hearings were not designed to be confrontational.”For years, cabinet secretaries have met behind closed doors to share their qualifications and address any concerns — like conflicts of interest — legislators may have,” said Berger. “It is extremely disturbing that Roy Cooper is demanding the state courts keep these meetings hidden behind closed doors and out of the public eye.”Cooper’s letter concluded with an appeal to delay hearings and instead focus on other issues the governor has prioritized since taking office and through out his campaign.”Instead of going through all of these confirmation hearings which we believe will become moot, why don’t we instead concentrate on continuing the excellent work your leadership and I are already doing on job recruitment?” pleaded Cooper. “We also must find a solution on H.B. 2 and have more detailed discussions about teacher pay and Medicaid, among many other issues. Our time and energy would be better spent on these challenges.”On the Senate floor Monday, Berger said that he did not expect the announced hearings schedule to change. Starting Wednesday, Senate committees will begin hearings with Cooper’s appointment for secretary of the Department Military and Veteran Affairs, reaching all eight current Cooper appointments within the next six weeks.