BILL ANALYSIS Ó AJR 32 Page 1 ASSEMBLY THIRD READING AJR 32 (Alejo) As Amended March 10, 2016 Majority vote ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Judiciary |7-2 |Mark Stone, Alejo, |Wagner, Gallagher | | | |Chau, Chiu, Weber, | | | | |Holden, Ting | | | | | | | | | | | | ------------------------------------------------------------------ SUMMARY: Urges the United States Senate to fairly consider President Barak Obama's nominee to the United States Supreme Court. Specifically, this resolution: 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. AJR 32 Page 2 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. (United States (U.S.) Constitution, Article II, Section AJR 32 Page 3 2.) 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. 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 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. President 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. Through the remainder of the 19th AJR 32 Page 4 century justices were nominated and confirmed during the election years of 1804, 1888, and 1892. 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. 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. 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 AJR 32 Page 5 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 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. Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0002685 AJR 32 Page 6