McCrory nominees held hostage

by Taylor Batten, Charlotte Observer, October 3, 2015.

Nine nominees for key state jobs, ranging from judgeships to the Utilities Commission to the state school board, are being held hostage while Gov. Pat McCrory and legislative leaders fight over an unrelated batch of appointments.

Among those in limbo are two Business Court judges who could put a dent in a huge caseload, and a would-be judge from Charlotte needed to help with a backlog in Superior Court.

McCrory nominated them and the other six, but they require confirmation from the General Assembly. Legislative leaders probably have no objection to the individuals – one was a favorite Republican candidate for the Supreme Court last fall – but they refuse to seat them because of a separate fight they’re having with the governor.

Now that legislators have adjourned, the freeze is sure to stay in place until at least next April and probably longer.

At the heart of all this, not surprisingly, is power. Though there’s no legal need to delay filling these important jobs, Senate leader Phil Berger and House Speaker Tim Moore want to make clear to McCrory, yet again, who’s in charge.

McCrory is facing off with Berger and Moore in the state Supreme Court. Legislators created three commissions – on coal ash, oil and gas drilling, and mining – and gave themselves power to make most of the appointments. McCrory sued, saying that violated the constitutional separation of powers because the boards serve an executive branch function.

A three-judge Superior Court panel unanimously agreed, and Berger and Moore appealed. Senate leaders then announced that they would not take up McCrory’s other appointments until the Supreme Court ruled.

Justices heard arguments in June, and many experts expected a ruling by now. But none has come, and now legislators have gone home until next spring. So the nominees will remain unconfirmed, collateral damage in a capital power struggle. In the meantime, workloads swell.

“These unnecessary legislative delays have a negative impact on the executive branch’s ability to run state government in an effective and efficient manner,” McCrory spokesman Josh Ellis told me Friday.

The underlying case is of fundamental importance because it speaks to the balance of power among North Carolina’s three branches of government. Berger and his colleagues want all they can get, but the determination in this case will live on long after they’re gone.

Berger’s lawyers argue that the legislature has been appointing people to boards and commissions for more than a century. McCrory’s lawyers argue that that’s no defense, and that the legislature’s job is to make the laws, not execute them. Each side makes a reasonable case, but it’s wrong for unrelated appointments to get tangled in this web.

One wonders how legislative leaders would react should they lose the case. It would not be surprising if McCrory’s appointees then never got a hearing – victims of a wrong-headed show of power and petulance.