News: CJ Exclusives

Judges consider extending order blocking Senate confirmations

Lawyers for NCGA say confirmation process enhances transparency; Cooper's team instead refers to it as 'tyranny'

From left, Superior Court Judges Todd Burke, Jesse Caldwell III, and Jeffery Foster hear arguments from lawyers representing Gov. Roy Cooper and the General Assembly in a lawsuit challenging the legislature's power to force confirmation hearings on Cabinet officers. (CJ photo by John Trump)
From left, Superior Court Judges Todd Burke, Jesse Caldwell III, and Jeffery Foster hear arguments from lawyers representing Gov. Roy Cooper and the General Assembly in a lawsuit challenging the legislature's power to force confirmation hearings on Cabinet officers. (CJ photo by John Trump)

A three-judge panel heard arguments Friday over whether to grant a temporary injunction blocking Senate confirmation of Gov. Roy Cooper’s Cabinet nominees.

That same panel — Superior Court Judges Jesse Caldwell III, Todd Burke, and Jeffrey Foster — on Tuesday issued a temporary restraining order in favor of Cooper, who has filed a lawsuit citing constitutional issues in the confirmation process, the root of which came with a measure, House Bill 17, passed by the General Assembly in December.

The injunction would effectively extend the TRO until the lawsuit goes to trial in March.

Cooper names in the lawsuit Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland.

The hearing in the Wake County Courthouse on Friday lasted more than 2 ½ hours as lawyers from both sides presented arguments that largely centered around separation of powers and the Senate’s constitutional limits to advise and to consent.

Cooper, say his lawyers, believes the Senate confirmation process as defined in House Bill 17, particularly Part III, Section 38, violates the separation-of-powers clause and, as a consequence, inserts the Senate into a core function of the executive.

Attorney Noah Huffstetler III, representing Berger and Moore, said the confirmation as stated in the law is simple, straightforward, and transparent, all the while displaying the virtue of efficiency.

Cooper’s team argued the Senate is simply failing to follow the law.

Attorney Jim Phillips, representing the governor, said Cooper’s claims stand on their merits and referred to the case as an example of legislative overreach. He said the Senate is treating the separation-of-powers clause as the proverbial “bump in the road” and that the legislative interpretation of “advise and consent” interferes with a core function of the governor in appointing his Cabinet, whose members will set the course for the state and uphold the law. The Senate process, as written in the law, causes irreparable in a number of ways, not the least of which involves a failure to follow statutes and the state constitution.

Cooper, Huffstetler and his team argued, can’t possibly show irreparable harm unless and until a nominee comes before the Senate and is disapproved.

The Senate, despite Cooper’s legal maneuvers, have nevertheless tried to proceed with the confirmation process

Wednesday, senators waited for Larry Hall, the veterans and military affairs secretary nominee, to appear at a scheduled hearing. Hall never showed.

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.”

The judges Friday directed pointed questions at both sides. A list of questions for nominees, though legitimate and germane, said Caldwell, could prove cumbersome and inherently time-consuming. If the legislature thought the executive branch was out of control, Burke asked, then why hasn’t already been proposed and passed. Why is it now so compelling?

The defendants’ team called the confirmation process a positive thing for North Carolina, as that relates to open government and a strong system of checks and balances. It’s good, sound public policy and is probably overdue, they said.

To a judge’s question, Cooper’s team responded that the separation-of-powers clause is a protection for the people against tyranny.

In a news release, Berger’s office shot back.

“We agree with the chief judge who said questions about these nominees’ qualifications, potential conflicts of interest, and willingness to follow the law are ‘relevant and germane.’ But for the governor’s lawyer to compare a simple confirmation process to ensure transparency and accountability to our taxpayers to ‘tyranny’ makes absolutely no sense. Does Gov. Cooper think Sen. Elizabeth Warren is a ‘tyrant’ for commanding answers from President Trump’s cabinet nominees? Does Gov. Cooper think President Trump’s cabinet should have been seated without Senate confirmation?”



  • William James

    Enough of this judicial activism! The General Assembly did nothing that was unprecedented and something must be done to rein in these intrusive and radical judges! Is there anything in the state constitution that parallels the federal — in which there is a power to limit the jurisdiction of federal judges? When will we stop letting black-robed petty dictators rule our every decision?

  • wchapple50

    Dare I ask why the Legislators of the State of North Carolina have no more responsibility than the U.S. Senate to confirm the Cabinet Members of the U.S. President.

    “The judges Friday directed pointed questions at both sides. A list of questions for nominees, though legitimate and germane, said Caldwell, could prove cumbersome and inherently time-consuming. If the legislature thought the executive branch was out of control, Burke asked, then why hasn’t already been proposed and passed. Why is it now so compelling?”

    I can only assume from the question put forth by Judge Burke that virtually all the nominees for the Trump Cabinet shall not suffer any further scrutiny or vetting by that august body, The U. S. Senate.

    A fair question??:

    “Does Gov. Cooper think Sen. Elizabeth Warren is a ‘tyrant’ for commanding answers from President Trump’s cabinet nominees? Does Gov. Cooper think President Trump’s cabinet should have been seated without Senate confirmation?”

    Typical Judicial Activism. The NC Legislators passed this bill into law. The only question that should be before the courts is the constitutionality…of the duly passed legislation.

    To quote the sign on the desk of SCOTUS Judge Scalia: “Stupid-But Constitutional”.