Confirmation of Cooper's Appointees Likely to Follow Familiar Process | Eastern North Carolina Now

    Publisher's note: The author of this post is Dan Way, who is an associate editor for the Carolina Journal, John Hood Publisher.

Most states use some form of committee referral to confirm Cabinet-level appointees

    The way the General Assembly confirms Cabinet appointees, by invoking the Senate's constitutional authority, will mirror methods used in other states.

    The Senate unanimously adopted a framework for its advice-and-consent confirmation process for Cabinet secretaries as part of the rules for the session on the opening day of the 2017 legislative long session.

    Some states use select committees and some have standing committees, according to the National Conference of State Legislatures. Other states have a special committee specifically for confirmations.

    NCSL's most recent survey was completed in 2003. (Read the survey here.)

    "Sometimes the entire legislature or a specific chamber is involved, but it's usually the Senate," said Brenda Erickson, who studies issues related to confirmation of gubernatorial appointments at the NCSL. Many of the state processes mirror the federal model for presidential appointees.

• "Every single legislative chamber and legislature is unique in their processes. They're similar in some ways, they all have their unique variations, and all of them kind of develop the kind of practices that work best in their unique circumstances."

    The process varies and can include, for example, background checks. Some panels decide whether the appointee must appear before one or more committees and how long interim appointees may serve.

    Some states have "very, very detailed processes that are written out in guides," and others allow a specified committee to determine the process, Erickson said.

    Gov. Roy Cooper has accused the General Assembly of unconstitutional violations of separation of powers provisions by, among other things, requiring confirmation of his appointees.

    Cooper filed a lawsuit challenging the General Assembly's passage of a law to merge the State Ethics Commission, Board of Elections, and some functions of the Secretary of State's office into a new State Board of Ethics and Elections Enforcement. He amended the suit to include the confirmation of appointees and other issues.

    Key details on the process are yet to come.

    "Since we haven't yet gotten to the 'substantive' start of the long session, it would probably be best to check back in on specifics once our members are back in town, and we begin our substantive business," said a spokeswoman in the office of Senate leader Phil Berger, R-Rockingham.

    "Who knows?" state Sen. Jerry Tillman, R-Randolph, said when asked when the final details of the confirmation process would emerge. "It can come up early or late in the session. I don't have a clue when it will be brought up."

    Sen. Bill Rabon, R-Brunswick, chairman of the Senate Rules Committee, said the process is mostly worked out. Details of a select committee that would "look over the credentials, and just make sure they are correct and in order," aren't finalized.

    That select committee would refer the nominee to a policy committee most closely matching the job for consideration and a recommendation, Rabon said.

    "That will more than likely come back to the select committee, and the select committee will then take that to the floor for the vote," Rabon said.

    Rabon said he has brought up confirmation bills in at least the past four sessions because, he believes, the Senate is "bound to do this" by the state constitution.

    "The legislature for the most part ought to try to get as much of its constitutional authority as possible," said Senate Minority Leader Dan Blue, D-Wake.

    Blue referred to "the brilliance of the Founding Fathers" in creating three co-equal branches of government, and the natural tension among them.

    Each branch "has its own distinct functions to sort of be a checks and balances against the other branches. ... And each one has a specific task, so it does not surprise me that each would keep fighting for its respective territory in that tripartite government structure," Blue said.

    "That's what you see with the governor challenging the legislature's action. We ought not be offended by that," Blue said, noting past governors have done the same.

    But, Blue said, lawmakers need to finalize the process so Cooper can begin his work.

    "I don't think there will be a tremendous delay," Tillman said.

    "I think a lot of that will depend on the quality of people the governor appoints. Our intent, I believe, is to give him the people he wants. But it doesn't hurt to have a second set of eyes on those issues, and that's simply what we will do."