ELLIOT: The Senates confirmation opportunity

Madeline Gray—North State Journal
Senator Phil Berger addresses the Senate after being elected as President Pro Tempore during the opening day of the 2017 legislative session on Wednesday

Gov. Roy Cooper has been slow to name his cabinet, partly for good reason. He didn’t even know he was going to be governor for all of November, with the result in doubt and McCrory’s concession not coming until Dec. 5. However, Cooper said on election night that he had already “won this race for governor of North Carolina,” so to judge by his own standards, he should have been ready to hit the ground running.
His political bluster aside, Cooper’s nanovictory must have set the transition back. But another development played a part as well. In the surprise extra session concocted by Republicans late last month, the General Assembly exercised its constitutional authority to advise on, and consent to, Cooper’s cabinet picks.
Cooper political adviser Ken Eudy, formerly of the Charlotte Observer/N.C. Democratic Party, has said that the Senate confirmations have scared away potential cabinet picks. Since we don’t know who those potential cabinet officers were, it’s hard to say whether that is a good development or a bad one.
Cooper challenged the new law in court this week, employing a dangerous argument — that the legislature’s check on Cooper appointees is unconstitutional because it would mean that a governor could not fulfill his constitutional duty to execute the laws. Under that specious reasoning, any check on executive power whatsoever — by the legislature or the courts —would be unconstitutional. Similarly, the General Assembly could argue that the governor’s veto power, even though it is expressly granted by the constitution, is unenforceable because it intrudes on the constitution’s insistence that the “legislative power of the State shall be vested in a General Assembly.”
Cooper, as all governors, deserves to have a top-level team loyal to him, supportive of his agenda, and answerable — alongside him — for results. Otherwise, we’ll have executive agencies run either by legislative committees or by agency insiders who can’t be fired. Neither is an attractive choice for a functioning and responsive executive branch.
The Senate’s check on executive power is legitimate, but how this added layer in the legislative-executive relationship is used is the big question. In Washington, the U.S. Senate has a long history of using confirmation hearings as an exercise in political grandstanding while rarely rejecting a nominee for a cabinet position. Never in modern times has a presidential cabinet nominee been rejected for ideological reasons. The last cabinet nominee to fail a confirmation vote, George H. W. Bush’s 1989 choice of John Tower for secretary of defense, was rejected for a combination of less-than-sober womanizing and a fear of too-close ties to the defense industry.
More often, a nominee withdraws before hearings begin, when rumors of bad behavior or scandal become too hot and threaten to make for an uncomfortable — even if ultimately successful — episode on Capitol Hill. This exercise in collective vetting can be helpful, but one can easily see the opportunity for abuse.
The way the state Senate conducts itself will set an important precedent. While future legislatures could cede the power of advice and consent back to the governor (highly unlikely), and future Senates could change the rules of the confirmation process each time (somewhat more likely), the first go at this process will weigh heavily on later efforts.
The Senate must establish an orderly, dignified process for an examination of cabinet choices. If they do so, senators will have produced a valuable aid to good government in North Carolina, not merely another venue for partisanship and vitriol.
Drew Elliot is a member of the North State Journal’s editorial board, separate from the news staff. Unlike other newspapers, the North State Journal does not publish unsigned editorials; the author or authors of every editorial, letter, op-ed, and column is prominently displayed. To submit a letter or op-ed, see our submission guidelines.