A three-judge panel rejected Gov. Roy Cooper’s attempt to block Senate confirmation of his cabinet secretary nominees, clearing the way for senators to exercise what they view as their clear constitutional authority to advise and consent on the governor’s picks.
The decision — rendered in Wake County Superior Court, and released at 5:36 p.m. Monday by Superior Court Judges Jesse B. Caldwell III, L. Todd Burke, and Jeffery B. Foster — denies Cooper’s motion for a preliminary injunction. It also dissolved a temporary restraining order that was previously issued.
The ruling failed to address Cooper’s contention the Senate advise-and-consent process violates constitutional separation of powers issues. Nor did it address Cooper’s “likelihood of success on the merits of his challenge.”
Rather, the court decided the case only on whether the confirmation hearing process imposes undue burdens on the executive branch and on the appointees.
“[T]he Court finds and concludes that this showing does not rise to the level of irreparable harm at this time,” the decision said. “[U]nless and until the State Senate specifically disapproves an appointee via simple resolution, Plaintiff’s proffered harm is speculative.”
The ruling doesn’t bar Cooper from seeking injunctive relief if one of his appointees eventually is rejected by the Senate.
Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland, reacted enthusiastically to the decision, noting that it conforms to the state constitution. In a joint statement, they said:
“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.”
Nobody answered the phone in Cooper’s press office, and a response to a request for comment was not immediately available.
Monday’s decision follows a hearing the three-judge panel held Friday, during which attorneys for Cooper and the legislative leaders presented arguments.
Cooper has named eight cabinet appointees, who are now fulfilling the obligations of their secretarial roles in an acting capacity. But he has not formally submitted their names to Berger, as required under the law enacted by the General Assembly in special session on Dec. 19.
None of the cabinet nominees has undergone the confirmation process. The first hearing was set before the Senate Commerce and Insurance Committee last Wednesday for former House Minority Leader Larry Hall, the nominee for secretary of military and veterans affairs, but he failed to appear.
Committee Co-Chairman Wesley Meredith, R-Cumberland, said at the time the confirmation hearing would be reset, and reaffirmed senators’ intention to get answers to questions about Cooper cabinet nominees’ qualifications, potential conflicts of interest, and willingness to obey the law.
Cooper, a Democrat, and his supporters claim the confirmation hearing law was passed by the Republican-controlled General Assembly to strip him of authority and diminish the power of the executive branch.
Republicans have said the constitutional authority for their action always existed, and it was a good government measure that should have been done much sooner.
Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.