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Three-judge panel deliberating about whether to stop Senate confirmation hearing for Cooper appointee

A three-judge panel is deliberating after hearing arguments about whether a temporary restraining order should be issued to halt one Senate confirmation hearing before a related court hearing Friday.

Former Rep. Larry Hall is scheduled to appear before the Senate on Wednesday to start what is expected to be a six-week process to confirm all of Gov. Roy Cooper’s cabinet appointees. Hall was appointed to become secretary of the state Department of Veterans and Military Affairs.

Cooper is suing the General Assembly over House Bill 17, which strips him of some powers and appointments. The Senate confirmation hearings, newly implemented during a special session in December, are also being challenged.

The governor wrote a letter asking Senate President Pro Tem Phil Berger to voluntarily halt the hearings until the conclusion of the lawsuit, but had to resort to filing the temporary restraining order and preliminary injunction with the court instead.

Arguments on the preliminary injunction, which would halt Senate confirmation proceedings until the conclusion of the lawsuit, are set to be heard Friday.

During Tuesday’s court proceeding, which took place via telephone, Cooper’s attorneys asked for a three-day temporary restraining order to stop Hall’s hearing.

Jim Phillips, a Greensboro attorney who represents Cooper, said the Senate confirmation hearings were unconstitutional.

“The Senate is simply not following the law,” he said.

The section of the Constitution that refers to the Senate’s ability to give advice and consent is meant for Constitutional offices, not statutory ones. Phillips argued that Cooper’s appointees were for statutory offices.

Additionally, Cooper has yet to formally notify the Lieutenant Governor of his appointees and has until May 15 to do so. Phillips argued that because of that, the Senate was acting prematurely in scheduling the confirmation hearings.

If an appointee was to be denied, “there will be disarray,” he said, adding that they could even accept another job between the denial and the court ruling.

Martin Wharf, a Raleigh attorney representing Berger and N.C. House Speaker Tim Moore, said the clause about the Senate’s ability to give advice and consent on constitutional offices was a bare minimum, not a limitation.

He also argued that the judiciary did not have the authority to step into a supervisory role over the legislature and stop it from conducting its business, as requested by Cooper’s attorneys.

“We believe that it would be a separation of power on behalf of the judicial branch to go that far into the legislative branch and attempt to stop it from conducting its affairs,” Wharf said.

Judge Jesse B. Caldwell III responded by asking Wharf if he was implying that the Senate would ignore an order by the court to halt proceedings because it believed the judiciary did not have that power.

Noah Huffstetler III, another Raleigh attorney representing Berger and Moore, jumped in and said he would not intend to advise his clients to ignore a court order in this case.

He argued that Cooper’s request for a temporary restraining order was “premature at best.” He said that the hearing Wednesday could serve as a record for the court to show that proceedings are not arduous, but rather efficient, transparent and beneficial.

Huffstetler said Hall’s hearing would be a minimal inconvenience that the court needed to balance against the “exceptional step,” it was being asked to take in halting proceedings.

“Without being overly dramatic, I would be remiss in not saying that that’s unprecedented and, to our way of thinking, constitutionally dangerous,” he said.

Judge Jeffery B. Foster said he was concerned by Huffstetler’s logic.

“To say that the court is weighing in, taking this unprecedented step of stopping the legislature … a Senatorial committee from doing something really is, it’s not really genuine, is it?” Foster asked.

Huffstetler responded that it is genuine in their minds and explained why.

Caldwell, Foster and Judge L. Todd Burke took all arguments under advisement and said they would notify the court and attorneys when a decision is reached.

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