Judges deliberating halting Senate decisions on Cooper’s appointees until lawsuit resolution

A three-judge panel did not decide from the bench Friday whether to temporarily block the Senate from making decisions on Gov. Roy Cooper’s cabinet appointees.

The panel issued a temporary restraining order earlier this week but heard arguments Friday about whether to issue a preliminary injunction for 25 days until the overall case is resolved.

Cooper’s attorney Jim Phillips, of Greensboro, made a separation of powers argument, stating that the legislative branch is encroaching on the executive branch by exercising advice and consent on Cooper’s appointees.

He also said that the threat of the legislature vetoing one of Cooper’s “most important powers” limits his appointee choices because he has to choose someone to appease the Senate.

“It has a chilling effect on the governor’s decision making,” Phillips said.

Martin Wharf, a Raleigh attorney representing Senate President Pro Tem Phil Berger and House Speaker Tim Moore, argued that a law passed by the General Assembly is constitutional “unless it is clearly prohibited.”

The Senate’s authority to give advice and consent does not take away the governor’s power to make appointments, he added.

Berger and Moore’s other attorney, Noah Huffstetler III argued that until the Senate moves forward with confirmation hearings, the harm to Cooper is just speculation — they don’t know what the process actually looks like or how long it will take.

He also said that the May 15 deadline Cooper has to formally submit his appointee names to the Senate is moot when he sends out press releases touting their qualifications and they begin doing “the people’s business.”

He added that it should be assumed Cooper and his aides conducted thorough vetting already of the appointees, but if they hadn’t, it was “all the more reason this confirmation process is necessary.”

Judge Jesse B. Caldwell III questioned Huffstetler about why confirmation hearings hadn’t been held in the past.

“If we have an executive branch that’s out of control, out of control, that needs to be reeled in … then why wasn’t this done before?” he asked.

Huffstetler said the hearings were not established as a reaction to Cooper being elected and that the legislature was a proponent of transparency.

“I think it’s just a good, sound public policy,” he said. “I believe that it’s probably overdue, your honor, that’s the best answer I can give.”

He added that just because it hadn’t been done in the past didn’t mean that it should stop them from doing it in the future.

Caldwell said if a preliminary injunction was ordered, it would not stop the Senate from holding hearings, it would only make their votes null and void until the lawsuit was settled.

Phillips argued that it should stop the hearings altogether because of the time it would require of appointees.

Caldwell and Judges Jeffrey B. Foster and L. Todd Burke will deliberate before making a decision.

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