BILL ANALYSIS Ó
AJR 32
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Date of Hearing: April 5, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AJR 32
(Alejo) - As Amended March 10, 2016
SUBJECT: United States Supreme Court: nominations
KEY ISSUE: Should the California Legislature urge the United
States senate to perform its constitutional duty and give a fair
hearing to president Obama's choice to replace the late justice
Antonin Scalia?
SYNOPSIS
The recent passing of Justice Antonin Scalia created a vacancy
on the United States Supreme Court, and under the U.S.
Constitution, it is the duty of the President to nominate a
person to fill the vacancy "with the advice and consent of the
Senate." However, the Republican Senate majority leader, Mitch
McConnell, announced that the Senate will not consider any
nominee that President Obama puts forward during an election
year. McConnell's questionable reasoning is that it is
"unprecedented" to consider a Supreme Court nominee during a
presidential election year. The apparent justification for this
position is that waiting until after the election will give
voters a say in deciding who shall replace Justice Scalia. As
pointed out in this resolution and discussed below, the claim
that it is unprecedented for a President to nominate, and the
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Senate to confirm, a justice to the Supreme Court during a
presidential election year is simply false. The resolution
points out that it has happened three times in the 20th century,
and the resolution might have added that it happened several
additional times in the 19th century. To be sure there have
been relatively few instances of a President nominating someone
to the U.S. Supreme Court during an election year, but this is
only because the situation rarely presents itself. While it may
be true that there have been few examples of a President
nominating someone to the Court during an election year, there
have been zero examples of a President forgoing his duty to
nominate someone because it was an election year. Indeed, the
Constitution does not give the President a choice in the matter.
Section 2 of Article II of the Constitution clearly states that
the President "shall" nominate members of the Supreme Court,
with the advice and consent of the Senate. Finally, as to the
argument that waiting until after the election will give the
people a say, the voters already had a say when they re-elected
President Obama in 2012 knowing that his term would last until
January 20, 2017. After all, the President made two
appointments in his first term, Sonia Sotomayor in 2009, and
Elena Kagan in 2010. To the extent that voters base their vote
for President on likely Supreme Court nominations, they could
have rejected President Obama in 2012 if they had found his
first-term nominees unacceptable.
SUMMARY: Urges the United States Senate to fairly consider
President Barak Obama's nominee to the United States Supreme
Court. Specifically, this measure:
1)Makes findings and declarations relating to the importance of
the Unites States Supreme Court, and the respective
constitutional duties of the President and the Senate in the
process of nominating and confirming justices to the Supreme
Court.
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2)Makes findings and declarations that Barack Obama was duly
reelected as President of the United States in 2012, and that
having reelected Barack Obama the American people have already
voiced their choice as to who should exercise the powers of
the Presidency, including filling any vacancies on the Supreme
Court that arise during the President's term of office.
3)Finds that there is historical precedent for confirming
nominees for Supreme Court nominees during the final year of a
president's term.
4)Declares that it would be a dereliction of the Senate's
constitutional duties should it fail to give due consideration
to the President's nominee and offer the President its advice
and consent.
5)Resolves that the California Legislature urges the United
States Senate to give whomever President Obama nominates to
the Supreme Court of the United States fair and honest
consideration through an up or down vote, both on the Senate
Judiciary Committee and on the floor of the United States
Senate.
6)Resolves that the Chief Clerk shall transmit copies of this
resolution to the President and Vice-President of the United
States, to the Speaker of the House of Representatives, to the
Minority Leader of the House of Representatives, to the
Majority Leader of the Senate, to the Minority Leader of the
Senate, and to each Senator and Representative from California
in the Congress of the United States.
EXISTING LAW provides that the President shall nominate, with
the advice and consent of the Senate, judges of the Supreme
Court. (U.S. Constitution, Article II, Section 2.)
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FISCAL EFFECT: None
COMMENTS: Within hours after Supreme Court Justice Antonin
Scalia's death was announced, on February 13, 2016, U.S. Senate
majority leader Mitch McConnell announced that the Senate had no
intention to hold confirmation hearings on a replacement. "The
American people should have a voice in the selection of their
next Supreme Court justice," McConnell claimed. "Therefore, this
vacancy should not be filled until we have a new president."
(New York Times, February 14, 2016.)
Later that same day, the Republican presidential primary
candidates opened their debate by concurring that the nomination
and confirmation should await the next president. Republican
candidates repeated the claim that it was "unprecedented" for a
President to appoint, and the Senate to confirm, a Supreme Court
nominee in a presidential election year. Not surprisingly many
Democrats disagreed. Senator Elizabeth Warren responded by
noting that "Senator McConnell is right that the American people
should have a voice in the selection of the next Supreme Court
justice. In fact, they did - when President Obama won the 2012
election by five million votes." Within the first few days of
Scalia's death, each side in the debate had presented purported
instances in which the Senate did, or did not, confirm a Supreme
Court nominee in a presidential election year. (New York Times,
February 13-17, 2016.)
Election Year Appointments and Confirmations are not
Unprecedented: The claim that it is "unprecedented" for the
President to nominate, and the Senate to confirm, a justice to
the Supreme Court in a presidential election year is simply
false. As the resolution points out, the Senate has confirmed
Supreme Court nominees during a presidential election year three
times in the 20th century: Anthony Kennedy in 1988 (appointed in
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1987); Frank Murphy in 1940; and Louis Brandeis in 1916. The
resolution could cite more examples if it looked to the 19th
century. Indeed, Chief Justice John Marshall - perhaps the most
renowned Chief Justice in the Court's history - was appointed by
President John Adams in 1801. Adams went one better than
appointing Marshall in a presidential election year; he
appointed him after he had already lost the November, 1800,
election to Thomas Jefferson. Marshall, along with several
other judges appointed to the federal courts, was one of
President Adams "midnight appointments" that led to the
celebrated case of Marbury v. Madison (1803). Through the
remainder of the 19th century justices were nominated and
confirmed during the election years of 1804, 1888, and 1892.
The 1892 was an especially closely contested election. When
Justice Joseph Bradley died in January of 1892, President
Benjamin Harrison nominated George Shiras, even though Harrison
was running for re-election against Grover Cleveland. The
Senate confirmed Shiras in late July, just a few months before
the election. By the time Harrison lost the election, Shiras
had already taken his seat. (Robert Murray, A History of the
Supreme Court (1968 edition); see also Timothy Huebner, "In
Election Years, A History of Confirming Court Nominees," New
York Times, February 16, 2016.)
To be sure there have been relatively few instances of a
President nominating someone to the U.S. Supreme Court during an
election year, but this is only because the situation has rarely
presented itself. While it may be true that there have been few
examples of a President nominating someone to the Court during
an election year, there have been no examples of a President
deciding not to nominate someone during an election year when
given the chance. In short, President Obama's failure to
nominate someone, and the Senate's failure to initiate hearings,
would be truly unprecedented. Indeed, the Constitution does not
give the President a choice in the matter. Section 2 of Article
II of the Constitution clearly states that the President "shall"
nominate members of the Supreme Court, with the advice and
consent of the Senate.
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Finally, as to the argument that waiting until after the
election will give the people a say, the voters already had a
say when they re-elected President Obama in 2012 knowing that
his term would last until January 20, 2017. After all, the
President made two appointments in his first term, Sonia
Sotomayor in 2009, and Elena Kagan in 2010. To the extent that
voters base their votes for President on likely Supreme Court
nominations, the majority of voters knew what kind of person
that President Obama would appoint; they could have rejected him
in 2012 if they had found his first-term nominees unacceptable,
but they did not.
Be Careful What You Wish For: Perhaps the closest historical
analogy to the present situation was the nomination and
confirmation hearing of Justice Abe Fortas during the
presidential election year of 1968. In June of 1968, before the
November election but after President Lyndon Johnson had
announced his intention not to seek another term, Chief Justice
Earl Warren announced his intention to resign. Many historians
believe that Warren decided to resign so that Johnson could
nominate his successor, fearing the prospect that the choice
would fall to Richard Nixon should he win the election. Johnson
appointed Abe Fortas to the Chief Justice position and intended
to appoint another person to fill the seat vacated by Fortas.
Fortas faced strong opposition in the Senate from Southern
Democrats and conservative Republicans, largely because of the
liberal justice's support for civil rights and, some would
argue, his Judaism. Significantly, however, the Senate leaders
who opposed Fortas did not claim that Johnson had no right to
appoint Fortas in an election year or, more important, that the
Senate should not hold confirmation hearings. Indeed, the
Senate moved quickly to hold hearings. However, when Fortas
came up for a vote, his opponents sustained a filibuster until
Fortas, realizing he had no chance, withdrew his nomination. At
the time a New York Times editorial condemned the filibuster and
withdrawal as a "defeat for democracy" and an abdication of
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constitutional duty. ("Defeat for Democracy," New York Times,
October 3, 1968.)
In the short term, the opponents of Abe Fortas won a victory
insofar as Richard Nixon won the election and earned the right
to make the appointment. In the long run, however, the Southern
Democrats and conservative Republicans who led the filibuster
may have won only a pyrrhic victory. Nixon eventually nominated
to that seat Harry Blackmun, the author of Roe v. Wade who would
become one of the Court's liberal stalwarts. (See Linda
Greenhouse, Becoming Justice Blackmun: Harry Blackmun's Supreme
Court Journey (2006).) Similarly, should the Democrats win the
White House and regain a majority in the U.S. Senate, the new
Democratic president could nominate, and a newly Democratic
Senate confirm, a very liberal justice to the Court, making
Mitch McConnell and his fellow Republicans wish that they had
considered the allegedly "moderate" Merrick Garland, President
Obama's current nominee.
ARGUMENTS IN SUPPORT: In support of this resolution the author
writes:
The American People have already spoken. Barack Obama
was reelected in 2012 by nearly five million votes and
is President of the United States until his term ends in
2017. Just as the President will follow the Constitution
by sending the Senate a nominee for the Supreme Court of
the United States, the Senate must honor its
constitutional obligations by giving the President's
nominee fair consideration with an up-or-down vote.
After the death of Justice Antonin Scalia, the Supreme
Court currently has an even number of justices. This
leaves open the possibility that important and
controversial cases may be subject to a tie vote by the
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Court. Without adjudication by the highest court in the
nation, different interpretations of state and federal
law across the several appellate courts may remain
unresolved for months, perhaps years. This would hamper
the functioning of both the federal government and the
governments of states like California.
In addition, the Supreme Court is considering
controversial cases this term, including affirmative
action, principle of "one person one vote," and
President Obama's executive actions on immigration.
These questions of national importance should not be
left unanswered because of the obstructionist efforts of
a group of United States senators who place partisan
politics above the national well-being.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
None on file
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Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334