Judges weigh Cooper’s request to block Senate confirmation hearings

Less than a day before the state Senate planned to hold its first confirmation hearing for one of Gov. Roy Cooper’s Cabinet members, a three-judge panel discussed Tuesday whether to temporarily block the hearing.

Because the judges were in three different locations for the emergency hearing, they held a conference call that was broadcast over a speaker phone in the Wake County courthouse. Lawyers for each side presented their arguments for and against the temporary restraining order as a small group of news media and representatives from Cooper’s office listened inside the small courtroom.

At issue is whether state lawmakers overstepped their authority in a December emergency legislative session by adopting a law making the governor’s Cabinet subject to Senate confirmation. The law came after Cooper, a Democrat, defeated former Gov. Pat McCrory, a Republican.

“The governor believes the Senate is not authorized to engage in this process,” Jim Phillips, a Greensboro attorney representing Cooper told the three judges — Jesse Caldwell of Gaston County, Todd Burke of Forsyth County and Jeff Foster of Pitt County. “The Senate is not following the Constitution.”

The governor requested a halt to the Senate proceedings until Friday, when the judges are set to consider whether to put a longer-term hold on the law while the lawsuit winds its way through court proceedings. The state Senate scheduled a hearing for Wednesday despite that schedule, a timing issue that brought questions from the judges.

Martin Warf, an attorney representing the Republican leaders of the legislature – Phil Berger, president pro tempore of the Senate, and Tim Moore, speaker of the state House – countered Phillips’ contentions that the Senate was overstepping its authority. He argued that granting Cooper’s request would block the Senate from doing its business.

“The advise-and-consent power is readily available to this General Assembly,” Warf said.

Caldwell asked whether Warf’s arguments meant the General Assembly would ignore a temporary restraining order.

Warf said he did not think the judges could tell the lawmakers not to conduct a hearing.

“Are you saying the Senate would continue its hearing?” Caldwell asked.

Noah Huffstetler, a Raleigh attorney also representing Berger and Moore, spoke up, saying he would not advise his clients to ignore a court order. Huffstetler added that telling the lawmakers not to hold a hearing was a “constitutionally dangerous step.”

Foster took issue with the arguments made by the lawmakers’ attorneys, saying he thought they were being disingenuous when they said a restraining order would keep the Senate from doing its business.

“To say that the court’s weighing in and taking this unprecedented step and stopping the legislature from doing something — it’s not really ingenuous, is it?” Foster asked.

A full trial on the case is expected to be held in March.

The judges ended the public portion of their hearing at 5 p.m., saying they would inform the parties and the clerk when they had issued their ruling.

The Senate Commerce Committee has scheduled a hearing for 11 a.m. Wednesday on Cooper’s naming former state Rep. Larry Hall, a Democrat from Durham, to head the Department of Military and Veterans Affairs.

This story was originally published February 7, 2017 at 7:15 PM with the headline "Judges weigh Cooper’s request to block Senate confirmation hearings."