Most people will be aware that it is a common separation of power feature in our three branched governmental system at both the federal and state level that the Executive Branch appoints leaders to the Executive Branch’s departments and/or agencies, and frequently those appointees must then be confirmed by the Legislative Branch – most often the Senate chamber. Arizona is among those governments in which this separation of power feature exists. As I write this, Warren Petersen, the President of the Arizona Senate, has authorized the filing of a lawsuit against Governor Katie Hobbs for ‘violating’ this procedure.
Here’s the rub: it is the Senate’s own actions (or lack thereof, actually) that prompted Hobbs to use her executive powers under law to withdraw all her pending nominees on September 25th of this year and just appoint them all as essentially interim directors.
The reader may or may not be aware that the normal and historical practice of Senate confirmation here in the Arizona Senate has been for the nominees to be forwarded to the Senate committee most relevant to the work of the agency which the nominee would head, and then that committee would consider the nomination. Not this past year. Just for Hobbs, the Senate threw together a new and unprecedented Star Chamber under the chairmanship of fake elector criminal, insurrectionist MAGA moron Senator Jake Hoffman, now often referred to as the ‘DINO’ committee. He seems to be using some whimsical standard on how and whether he will evaluate and recommend confirmation of the appointees, and Hobbs got sick of it.
The nominees names, backgrounds, qualifications, and the agencies the Governor wanted to appoint them to aren’t really that important; what is critical to understand to really understand the controversy underlying this dispute is the dates on which those nominees were submitted to the Senate, and when they were finally withdrawn. Let’s look a basic time line for the 13 appointments at the root of the Senate lawsuit. The 13 directors were nominated and transmitted to the Senate for consideration mostly in January and February of 2023, shortly after Hobbs was seated. A few were nominated and transmitted in March and April on 2023. They were all withdrawn in late September of 2023 after the so-called RINO committee failed to do ANYTHING to advance the consideration of these nominees for 6 to 8 MONTHS.
The Senate’s brief points out, correctly, that the Senate has confirmed 10 of Hobbs’ nominees, while only rejecting 3 of them. True, as far as it goes, but they seriously elide the fact that Hoffman also has refused to even hold hearings to take up the confirmation of these 13. At all. They repeatedly point out that the “Senate may, in its discretion, decline to hold a vote on a nominee, and such inaction does not constitute a confirmation of the nomination.” Also true, but that certainly means they aren’t doing their part to carry forward Arizona’s constitutional and statutory scheme to advise and consent on the Governor’s appointments. What can happen in such a situation is that the Governor may appoint an interim director who may serve no longer than one year.
You will note that it has been nowhere near one year since the Governor withdrew all her pending appointments and appointed interim directors instead. It’s been about two months. Under regular jurisdictional rules of the courts, such a controversy would not be ‘ripe’ for consideration: why would the court do anything when the interim appointments have not been in place the year which the law allows them? And why are the Senate Republicans whining about Hobbs’ interim appointments before the matter would seem to be ripe?
Republicans suspect that Hobbs intends to simply bypass the DINO committee, because she’s clearly said so. And she made a rather creative legal maneuver to install her nominees as DEPUTY directors to a very short-term interim director appointee, who then immediately resigned, making the deputies the ‘acting’ directors. It is unclear under state law whether such an acting director is simply the legal equivalent of an interim director who would be limited to one year of service. Hint: in my view they are simply interim directors, and that is likely how the courts would treat them. But this novel appointment process sets Hobbs up to potentially just ignore Senate confirmation for the rest of her Administration, since Hoffman seems pretty committed to simply denying her ability to staff her agencies.
Hobbs demands that Hoffman’s star chamber be dismantled and the Senate return to regular order and historical practice, because her nominees are simply not even getting a hearing by the DINO committee. She threatens to simply let her ‘creatively’ appointed de facto acting directors to simply continue leading their agencies – though she hasn’t actually done so yet, and is nowhere near doing so any time soon. Hence the Senate’s constant whinging in the complaint that Hobbs is violating a statutory duty by not forwarding any nominees to the Senate at this time.
So, despite the issues not being technically ripe, as none of the acting directors have served longer than the statutorily allowed one year, the Senate is shitting their pants and spitting nails over the possibility that she might be willing to test the issue, and they decided to sue her preemptively to try to deny her any leverage her novel appointments were designed to give her in the high stakes negotiation to strip Hoffman of his stranglehold on her Administration’s staffing.
So how will the courts evaluate the issue? Who knows? My view is that there is no legal distinction between an acting director and an interim director and it will be September 25th, 2024 before Hobbs has to make it clear whether she really intends for her creatively installed interim directors to continue their appointments beyond the statutorily allowed one year.
Under such an analysis the Senate’s suit should simply be dismissed for lack of ripeness. What the Senate seems to want is in the nature of an advisory opinion by the courts as to whether Hobbs’ administrative shuffle allows her to bypass the one year interim limit. They seek to remove any legal leverage the Governor’s threat to legally innovate in the face of the Senate’s rules-based innovation of the DINO committee, which was designed specifically to stymie her control of the Executive Branch. The courts should not oblige them. Let the Senate stew in the juices of the hot mess they made by allowing Hoffman to attempt to meddle in Hobbs Administration’s policies with his illegitimate and unprecedented star chamber partisan nonsense. I find myself in complete agreement with Laurie Roberts that the Senate would save lots of time and money by just disbanding Hoffman’s star chamber instead of trying to drag the courts into their political dispute with the Governor.