RALEIGH — You might have already forgotten about 2017’s most over-hyped political drama between the state legislature and Gov. Roy Cooper, but the lawsuit is still crawling its way through the court system — with important implications for state government’s power balance.
The fight over Senate confirmation hearings for Cooper’s Cabinet secretaries hasn’t gotten much attention lately, so let’s flash back to February for a refresher: Senators had set up a table, microphone and paper nameplate for Cooper’s pick to lead the state’s veterans and military affairs department, former state Rep. Larry Hall. But Hall twice didn’t show up for his confirmation hearing, while Cooper asked the courts to intervene and halt the process.
Cooper didn’t succeed, so Hall and the rest of the governor’s Cabinet eventually took questions from senators. We reporters went to the meetings expecting fireworks: Surely Republican senators would give Democratic Party appointees a Washington-style grilling, and they’d seek to block at least some of the nominees. After all, one of North Carolina’s top Republicans is U.S. Sen. Richard Burr, who proudly blocked one of President Barack Obama’s judicial nominees to create what he noted was “the longest judicial vacancy in the history of the United States.”
But the confirmation hearings proved to be boring affairs, just like any other job interview where both sides know the process is just a formality. The Senate approved Cooper’s Cabinet picks with bipartisan support, and the issue faded from the headlines.
Cooper, however, continued his lawsuit over the law that created the confirmation process — one of several measures passed by the legislature last December to ensure Cooper has less power than his Republican predecessor. The governor argues the confirmation process infringes on the constitutional powers of the executive branch, but the legislature points to a line in the state constitution that says the “governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all officers whose appointments are not otherwise provided for.”
That’s a pretty clear component of the constitution, and so far Cooper has been losing this legal battle. The N.C. Court of Appeals sided with the legislature in early November — upholding a lower court ruling — and now the matter heads to the state Supreme Court. Cooper told reporters he “fully expected” to lose at the Court of Appeals, citing the all-Republican panel of judges assigned to the case, and indicated he expects to win in the Supreme Court.
Given that the Supreme Court has four Democrats and three Republicans, the governor has an incredibly cynical view of the state’s judiciary — if the judges are in his political party, he’ll win. If not, he’ll lose. He’s suggesting that judges will blindly follow their party regardless of what the laws, constitution and legal precedent say.
But a recent analysis by the conservative John Locke Foundation of 2017 Supreme Court rulings found that’s not true. The vast majority of rulings were unanimous, and 4-3 splits have only fallen along party lines twice this year. Odds are good that the majority ruling on the confirmation case will include justices from both parties.
It’s understandable that Cooper still wants the law struck down — even though this year’s confirmations didn’t harm his administration. It’s possible the Senate was on its best behavior during confirmation hearings to avoid adding fuel to the governor’s legal case. That could change once the matter becomes settled law. Republicans would find it tempting to pull a Richard Burr and block Democrats’ nominations indefinitely — a maneuver that would harm the work of key state agencies controlled by the governor.
Let’s hope that doesn’t happen, regardless of who wins in court. The last thing North Carolina needs is a legislature that acts like Congress.
Colin Campbell is editor of the Insider State Government News Service. Follow him at NCInsider.com or @RaleighReporter. Write to him at [email protected]