The Delaware Supreme Court issues its advisory opinion on a Governor's authority to withdraw nominations prior to Senate confirmation, siding with current Gov. Matt Meyer over Delaware State Senate leadership.
The dispute between the governor and Senate leadership arose following former Gov. Bethany Hall-Long's decision to nominate five members to the Diamond State Port Corporation (DSPC) Board — the public body in charge of the Port of Wilmington and the development of the Delaware Container Terminal at Edgemoor — during her two-week tenure as governor.
Upon learning about her nominations, Gov. Meyer immediately requested the five names be withdrawn from consideration by the Senate Executive Committee prior to their confirmation hearings.
Despite the governor's request, the Senate Executive Committee went through with the confirmation hearings and voted to send four of the nominees to the full Senate to confirm — a full vote has yet to occur.
A decision was made to put that full vote on pause until the Delaware Supreme Court could weigh in on if Gov. Meyer had the authority to withdraw the names.
While the State Senate argues Hall-Long's candidates were actually "appointments" and not "nominations" via language within the Delaware Constitution, ultimately keeping the governor from being able to withdraw the names, the high court disagrees.
The justices opine that Hall-Long solely initiated the appointment process by delivering nomination letters to the Senate, but the governor may withdraw a nomination before a majority of the Senate has consented to it.
"Simply put, under our Constitution, the appointment of officers identified in Section 9 is an executive function. The Senate, to be sure, provides a check through its consent authority on the Governor’s faithful and diligent exercise of that function. But that check does not transfer the appointment power to the Senate upon the Governor’s submission of a nomination as a precursor to appointment," the justices write.
Because of the high court's opinion that the governor may withdraw nominations from consideration, they did not feel it necessary to answer the additional question of if Gov. Meyer has the discretion to withhold commissions for confirmed nominees to the DSPC Board.
"We need to move our port forward for the benefit of Delawareans, not for a small group of insiders. Together, we can realize the port's potential to create thousands of quality union jobs, and I want to thank the Supreme Court justices for their hard work on this matter," Gov. Meyer said in a statement.
“The General Assembly thanks the Supreme Court for its review of this matter, and believes that clarity on the appointment issue will benefit future Governors, General Assemblies, and Delawareans alike," Senate leadership said in a statement. "We have great respect for the rule of law, which is precisely why the Senate chose not to confirm the appointees and instead sought this Supreme Court opinion. With this chapter behind us, we reiterate our simple request: that Governor Meyer offer up his own slate of Port appointees who will fight for the union families for whom Port expansion is a lifeline; appointees who are committed to fulfilling the economic promise of this historic infrastructure investment."
Hall-Long's initial nominations included Local International Longshoreman’s Association (ILA) President William Ashe, former Secretary of State Jeff Bullock, Local Laborers' International Union of North America (LiUNA) Business Manager Curtis Linton and International Union of Operating Engineers (IUOE) Business Representative James Ascione.
Her fifth nominee, former Delaware Board of Pilot Commissioners Chair Robert Medd, withdrew his nomination.
Ashe, Linton and Ascione all reported having talks with the Meyer administration about being re-appointed if they chose to withdraw their names from consideration. Bullock did not report having such a meeting.
