Court removes block on NC cabinet confirmations

Posted February 14

This was the seat prepared for former Rep. Larry Hall, D-Durham, to face a confirmation hearing Feb. 8, 2017.

— ​A three-judge panel says the state Senate can move ahead with confirmation hearings on Gov. Roy Cooper's cabinet nominees despite objections by the governor that the process is unconstitutional.

The six-page ruling says Cooper has not yet suffered any harm. However, if one of his cabinet nominees is turned down, the order makes a point of saying Cooper can come back to the court. In the mean time, the court dissolved its prior order blocking nomination hearings from having any impact.

Senate Rules Chairman Bill Rabon, R-Brunswick, called the ruling "good news" shortly after it was released at noon. The Senate had started, and then stopped, its confirmation process last week. Rabon said he believes that process will restart soon.

"We will meet and discuss before re-engaging," he said.

However, William McKinney, Cooper's General Counsel, cited a portion of the order that says Cooper has until May to make his nominations under the law. Confirmation hearings, he said, should not start until then.

Ford Porter, a spokesman for Cooper, said the governor was "satisfied" with the ruling.

"The three judge panel has made clear that the 'Senate cannot begin the advice and consent process until the Governor submits a nominee,' " Porter said. "The Governor plans to wait for the full hearing on the constitutionality of this law to go forward on March 7th before submitting his nominees, which he believes will not be necessary."

That's not an interpretation shared by Senate leaders, who say the fact Cooper has chosen, sworn in, and begun paying his cabinet members acts as a de facto nomination.

"We disagree with the governor's characterization of the May deadline. We don't think that applies to this," Senate President Pro Tempore Phil Berger, R-Rockingham said.

This disputes stems from a special General Assembly session held in December just after Cooper, a Democrat, became the clear winner of his election against Republican Gov. Pat McCrory. Lawmakers passed a pair of bills that stripped Cooper of some of his office's authority before he was sworn in.

Cooper has gone to court, asking that those measures be declared unconstitutional. Until the trial, Cooper had asked that the law with regard to appointments be put on hold.

The three-judge panel did not rule on whether the confirmation process set up by the Senate is constitutional, only that Cooper had brought his case too soon.

A trial on the law's constitutionality is scheduled for March.

Until Tuesday, House and Senate leaders had been harshly critical of the three judge panel, saying it had over-stepped its authority by putting even a temporary hold on deliberations. This latest ruling earned lawmakers' praise.

"It is incredibly encouraging that this court has shown judicial restraint and rejected Gov. Cooper’s extraordinary request to stop the people’s elected representatives from conducting a fair, open and transparent hearing process to determine whether his proposed cabinet secretaries are qualified, without conflicts of interest, and willing to follow the law," reads a joint statement from Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland.


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