Judges won't extend confirmation ban in N. Carolina Senate

AP News
|
Posted: Feb 14, 2017 6:21 PM

RALEIGH, N.C. (AP) — The Republican-controlled North Carolina legislature can keep for now its authority to confirm Cabinet secretaries of the new Democratic governor, a state judicial panel has ruled.

Three trial court judges rejected the request of Gov. Roy Cooper to extend a temporary block on the confirmation law the judges had issued last week. The law is among many approved just before Cooper took office and viewed by Democrats as undermining his authority.

The law subjects Cooper's department heads to the "advice and consent" of a majority of senators. Cooper sued last month, saying confirmation doesn't apply to his picks.

The judges' order, released Tuesday, rejected Cooper's argument he would suffer irreparable harm if Cabinet members that he's chosen had to go before Senate committees. The governor could return and seek an injunction again if a secretary fails to receive confirmation, the judges wrote, but for now the harm is "speculative."

In the meantime, Cooper and Senate Republicans disagree about whether the order means confirmation hearings can begin.

Senators earlier laid out a plan to hold confirmation hearings on Cooper's eight current Cabinet picks through mid-March. The first hearing had been scheduled last week, but the judges' temporary block was released hours before that meeting. The judges heard more oral arguments last Friday on extending the delay.

Republican Senate leader Phil Berger and House Speaker Tim Moore praised the judges' denial of Cooper's 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."

Republican legislative leaders say the state Constitution gives the Senate authority to scrutinize the Cabinet, but attorneys for Cooper's attorney say confirmation doesn't apply to his Cabinet and cuts into core powers. Tuesday's order doesn't address the constitutional issues raised in the litigation. A trial on those issues is scheduled for early next month.

In the new order, dated late Monday, Superior Court Judges Jesse Caldwell, Todd Burke and Jeffrey Foster said the Senate "cannot begin the advice and consent process until the governor submits a nominee."

The judges wrote the governor has until May 15 to formally submit the nominees' names to the Senate, and he's yet to do so. So the hearings shouldn't begin until then, Cooper general counsel William McKinney said.

"We are satisfied with the ruling," Cooper spokesman Ford Porter said in an email citing the judges' words on the nominees. Porter added the governor plans to wait until the trial is held early next month before submitting nominees, "which he believes will not be necessary."

Berger told reporters the temporary block to confirmation hearings has now been lifted, and legislative leaders believe the May date doesn't apply to the Cabinet picks that have been sworn in and are clearly performing duties for Cooper.

"I think he's nominated them," Berger said.

The GOP-led General Assembly and the governor already have been fighting in court on other matters.

The same three-judge panel blocked another new law that shifted oversight of elections away from the governor and toward the legislature. After several days of legal filings, the state Supreme Court preserved that ruling late Monday.

In federal court, a judge agreed with Moore and Berger last month and blocked attempts by Cooper or President Barack Obama's administration to approve Medicaid expansion in the state.