The attorney for Gov. Katie Hobbs told a judge if he orders her to submit the names of those she wants to head state agencies to the Senate for confirmation she will do it and then promptly withdraw them, meaning nothing will change.
At a hearing Monday, Andrew Gaona disputed the contention of Senate President Warren Petersen, who sued the governor, that Hobbs legally must submit the nominations to give the Senate the final say.
He acknowledged that the governor, unhappy with the lack of action on some of those nominations, engineered a work-around last year, withdrawing their names from consideration and turning around and naming those very same people as "executive deputy directors.'' And, for all intents and purposes, they are serving as directors as there is no one above them.
Gaona said, though, none of that violates state law. And he told Maricopa County Superior Court Judge Scott Blaney there is no authority for him to order Hobbs to submit nominations as Petersen has requested.
But Gaona told the judge that if he sides with Petersen and forces Hobbs to renominate those same individuals, the governor will comply -- and then immediately withdraw the nominations.
"And the Senate would be in no different position than it is right now and would have no claim against the governor,'' he told the judge.
That statement drew surprise from Kory Langhofer who represents Petersen.
"I didn't expect to have such a blunt discussion about,'' he said, saying this would result in a merry-go-round of court filings and gubernatorial actions. But Langhofer told Blaney he can't allow that to happen.
"What the governor seeks is to rule without oversight,'' he said. "And our system is set up to not let that happen.''
Hanging in the balance is more than just the current spat between Hobbs and the Republican-controlled Senate about whether she's entitled to have the agency directors she wants. What Blaney rules ultimately could buttress -- or undermine entirely -- the whole process of the Senate having the final say on gubernatorial choices through its powers to "advise and consent'' on nominations.
Until 2022, nominations to head state agencies generally were reviewed by a relevant Senate committee. So, for example, the choice for someone to head the Department of Public Safety would go to the Senate Committee on Public Safety. And the Health Committee would review someone to head the Arizona Health Care Cost Containment System, the state's Medicaid program.
All that changed that year after voters selected Hobbs, a Democrat, while leaving Republicans in control of the Senate by a 16-14 margin.
Petersen created a special Committee on Director Nominations -- known as the DINO Committee -- and tapped Sen. Jake Hoffman, R-Queen Creek, the founding member of the Arizona Freedom Caucus, to chair it. And Hoffman made it clear he intended to do a deep dive on the governor's choices.
The result, said Gaona, is that the panel gave hearings to only 11 of the governor's nominees and confirmed only six.
"What happened was that the Senate decided to choose petty politics over good governance,'' he told Blaney.
"Many of the hearings that the DINO committee held can charitably be described as sideshows,'' Gaona said, saying that Hoffman was using the nomination process "to try and extract irrelevant political concessions from the governor.''
So Hobbs simply withdrew all the pending nominations. She then appointed Ben Henderson, her director of operations, a non-confirmation position, to temporarily head the agency.
Henderson then names the nominated-but-unconfirmed director as executive deputy director. Then Henderson quit that agency, leaving the deputy in charge, moved on to the next agency, and repeated the process for all of Hobbs' spurned nominees.
Langhofer said the governor can't simply ignore the confirmation process.
"The reason is that these agencies have come over time to wield an incredible amount of power over the people in this state,'' he said.
"They literally make law,'' Langhofer said, through rules which have the same effect as if they had been enacted by the Legislature. "It's very important to not let ... these agencies run amok. It's too m uch power.''
Gaona countered that the governor is willing to live with the confirmation process if it is conducted in good faith.
He cited the letter that Hobbs sent to Petersen when she yanked the nominations, accusing Hoffman of being not just "disrespectful'' to her choices but trying to "leverage the confirmation of qualified nominees for the implementation of his policy preferences within the executive branch.''
"He has contacted nominees to imply that their confirmation hinged on the rescission of long-standing agency policies over which he has no authority,'' the governor wrote. "He has held up the confirmation of a nomination simply for identifying as pro-choice.''
There were other issues raised by the nominations committee that the governor said were irrelevant.
For example, Hobbs nominated former state Sen. Martin Quezada as the director of the Arizona Registrar of Contractors, an agency that Gaona said is not political.
But GOP lawmakers on the panel peppered him with questions about everything from transgender people in sports and white nationalism to racism, school vouchers and Israeli-Palestinian relations, the last having to do with statements Quezada made while a state senator long before the current war supporting the interests of Palestinians in their political battles for a homeland. Hobbs withdrew his nomination.
One issue that Blaney is weighing is whether there are grounds to conclude that the governor's action is illegal.
He said it may be, as Gaona argued, that each of the steps the governor took from naming directors to withdrawing nominations to leaving a deputy in charge was legal.
"But when you put it together, she unilaterally appointed a director,'' Blaney said. "The court still has to look at is as a whole and say, 'Wait a minute, but the end result was not,' '' the judge said.
Blaney did not say when he will rule.
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