An empty chair was pulled up to a scuffed table, upon which rested a tablet, a pencil, and a name card for “Larry Hall.” A room full of senators, media, and visitors encircled the table to await Hall’s arrival Wednesday as the first of Gov. Roy Cooper’s cabinet appointees to be scheduled for a Senate confirmation hearing.
Hall, the veterans and military affairs secretary nominee, never showed, prompting a television newsman to muse that perhaps a Clint Eastwood moment was in store. The Hollywood action star awkwardly interviewed an empty chair, which represented President Barack Obama during his stage appearance at the 2012 Republican National Convention.
Senate Majority Leader Harry Brown, R-Onslow, was among those who were not so amused by Hall’s decision to thwart the will of Senate Republicans to impose what they believe is a clear advise-and-consent role to confirm gubernatorial appointees. That authority appears in the state constitution and was enshrined in a state law passed late last year.
A three-judge Superior Court panel had ruled the previous night in favor of Cooper, who sued to block the confirmation process for Cabinet members. The panel issued a temporary restraining order directing the Senate not to proceed with confirmation hearings.
Asked if the will of the Senate to confirm Cabinet members, and the order of the court to bar the action until a ruling is delivered Friday have created a constitutional crisis, Brown was as sparse with his words as he was quick to answer.
“I’d say so,” he responded from his office, shortly after the Senate Commerce and Insurance Committee adjourned without Hall showing up. Committee Co-Chairman Wesley Meredith, R-Cumberland, said the confirmation hearing would be reset, pledging, “we are going to get answers to questions regarding their qualifications, potential conflicts of interest and willingness to obey the law.”
“I guess we’re going to try to take appropriate action. We just haven’t quite figured out what that is at this point,” Brown said. “But you know there’s three branches of government, and we’re surely going to protect this one.”
“We need to put these partisan confirmation games behind us and get on with repealing H.B. 2, raising teacher pay and getting better jobs for North Carolinians,” Cooper said in a statement released by his press secretary after the committee meeting let out. “The court is absolutely correct in their decision and should not be intimidated by threats from legislative leaders.”
In a response on Twitter, Senate leader Phil Berger, R-Rockingham, said: “I’ve voted to repeal H.B. 2, raise NC teacher pay to highest level, & help attract half a million new jobs. What have you done, governor?”
Sen. Floyd McKissick, D-Durham, faulted Republicans for creating a problem where none should have existed.
“It’s foolish. It’s nonsense,” McKissick said of Republicans forging ahead with the confirmation hearing after the three-judge panel told them to scrap the process until a formal ruling is issued.
“They’re restrained beneath the court order from holding any of these meetings to enforce the operative provisions of House Bill 17 relating to this confirmation process,” McKissick said.
He also expressed concern over a joint statement issued Tuesday night by Berger and House Speaker Tim Moore, R-Cleveland in response to the temporary restraining order. They said the judges’ “decision to legislate from the bench will have profound consequences.”
“It’s a very veiled threat, and I think it’s improper,” McKissick said.
“They’re the ones that set up the process with this three-judge panel,” he said. “The chief justice appoints those three judges. I have to have confidence in those judges. They could have decided one way or the other. When they make those decisions, whether we like them or not, they must be respected.”
Like Brown, Sen. Bill Rabon, R-Brunswick, chairman of the Senate Rules Committee, said he is prepared to fight for the legislature’s constitutional powers.
“We have three branches of government, and I will speak for this branch,” Rabon said when asked whether he believed the judiciary has final say over constitutional matters.
“We will see what happens Friday, and we will move forward as we can,” he said.
Sen. Ralph Hise, R-Mitchell, said he does not believe there is a separation-of-powers crisis.
“The General Assembly clearly has the authority to meet, and conduct its business. The General Assembly clearly has the authority to confirm these appointments. I don’t know where the crisis is,” Hise said. “I see it as a misinterpretation” by the judges, and errant reasoning to direct the legislature not to hold committee meetings at which it conducts its constitutional duties.
He put little stock in McKissick’s contention that Cooper insists he has not yet made “official” Cabinet appointments, which he has until May 15 to do. For that reason, McKissick said, Republicans “really shouldn’t even be conducting meetings they arbitrarily decided to do.”
“We clearly began the process where he has made public statements, announcements, and press conferences saying, ‘This is my nominee,’” Hise said.
The law allows provisions for temporary department heads to decide in the absence of a secretary, even if the interim person is the as-yet-unconfirmed nominee, Hise said. “In their current roles, I think that can cover most actions of the secretary.”
An interim department head can serve until 30 days after the General Assembly adjourns, “or until we vote the nominee down,” he said.
As an example, he said, Hall “is serving as acting secretary, but until he receives consent, as I understand it, he is not in that role.”