BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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.










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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.  (United States (U.S.) Constitution, Article II, Section  








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          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  








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          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  








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               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















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