BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AJR 32 (Alejo)
Version: May 5, 2016
Hearing Date: June 14, 2016
Fiscal: No
Urgency: No
RD
SUBJECT
United States Supreme Court: nominations
DESCRIPTION
This measure would make various declarations relating to the
importance of the United 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. This measure would urge the U.S. Senate to give
President Obama's nominee to the Supreme Court fair and honest
consideration through an up or down vote, both on the Senate
Judiciary Committee and on the floor of the U.S. Senate.
BACKGROUND
On February 13, 2016, U.S. Supreme Court Justice Antonin Scalia,
who had served over three decades on the high court, was found
dead at a West Texas resort. (Liptak, New York Times, Antonin
Scalia, Justice on the Supreme Court, Dies at 79 (Feb. 13, 2016)
[as of May 9, 2016].) A conservative jurist, his death
sparked immediate declarations from prominent congressional
Republicans that no nominee of the democratic president,
President Barack Obama, would be confirmed. Indeed, Senate
Majority Leader Mitch McConnell reportedly declared that the
Senate should not confirm a replacement until after the 2016
election roughly an hour after Justice Scalia's death was
confirmed. (Everett and Thrush, Politico, McConnell Throws Down
the Gauntlet: No Scalia Replacement Under Obama (Feb. 13, 2016)
[as of May 9, 2016].)
Nonetheless, on March 16, President Obama nominated the Chief
Judge of the U.S. Court of Appeals for the D.C. Circuit, Judge
Merrick Garland, to fill the seat left vacant by the late
Justice Scalia. (Chappell and Johnson, National Public Radio,
Merrick Garland is Named as President Obama's Supreme Court
Nominee (Mar. 16, 2016)
[as of May 9, 2016].) To date, the U.S. Senate has yet to
hold any hearings to consider the President's nominee.
This measure seeks to urge the U.S. Senate to give President
Obama's nominee to the Supreme Court fair and honest
consideration through an up or down vote, both on the Senate
Judiciary Committee and on the floor of the U.S. Senate.
CHANGES TO EXISTING LAW
Existing federal law , the U.S. Constitution, provides in
relevant part that the President shall nominate, and by and with
the advice and consent of the Senate, shall appoint judges of
the Supreme Court. (U.S. Const., art. II, Sec. 2.)
This measure would declare, among other things, that:
the Supreme Court of the United States is the highest Court in
the Nation and considers important national questions whose
determination is necessary for the orderly operation of the
federal government and the government of the several states;
having an even number of justices on the Supreme Court of the
United States makes it possible to have numerical ties in
controversial decisions before the Court, which could leave
unresolved conflicts of law between the several Circuit Courts
of Appeal across the Nation;
a failure to ensure conformity of federal and state law across
the several states would severely compromise the fundamental
constitutional principles of due process and equal protection
under the law;
Section 2 of Article II of the U.S. Constitution provides the
President with the power to nominate justices to the U.S.
Supreme Court with the advice and consent of the U.S. Senate;
by reelecting Barack Obama as President, the American people
have already voiced their affirmation that he is their choice
to exercise the powers of the Presidency, including filling
AJR 32 (Alejo)
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vacancies on the Supreme Court that arise during his term in
office;
there is historical precedence for confirming nominees for
Justice of the Supreme Court during the final year of a
president's term, including Justice Anthony Kennedy by
President Ronald Reagan in 1988; Justice Frank Murphy by
President Franklin D. Roosevelt in 1940; Justice Louis
Brandeis by President Woodrow Wilson in 1916; Justice George
Shiras, Jr. by President Benjamin Harrison in 1892; Justice
Melville Fuller by President Grover Cleveland in 1888; Justice
William Johnson by President Thomas Jefferson in 1804; and
Chief Justice John Marshall by President John Adams in 1801;
and
the U.S. Senate has a duty afforded by Section 2 of Article II
of the United States Constitution to provide the President of
the United States with their advice and consent to nominations
to the Supreme Court of the United States made by the
President, and refusing to even give due consideration to a
presidential nomination would be a dereliction of the Senate's
constitutional duties.
This measure would urge the U.S. Senate to give President
Obama's nominee to the Supreme Court fair and honest
consideration through an up or down vote, both on the Senate
Judiciary Committee and on the floor of the U.S. Senate.
COMMENT
1. Stated need for the bill
According to the author:
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 Court. Without adjudication by
the highest court in the nation, different interpretations of
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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.
AJR 32 calls upon the United States Senate to give President
Obama's nominee to the Supreme Court of the United States a
fair hearing or vote.
2. Power and duty to nominate and appoint U.S. Supreme Court
justices
The U.S. Constitution, under Article II, Section 2 ("the
Appointment's Clause") gives not only the power, but in fact
charges the President with the duty, to nominate and to appoint
judges of the Supreme Court. In doing so, the Appointment's
Clause also relegates the duty to provide advice and consent on
the president's nominee to the U.S. Senate.
Election year nominations, while perhaps not altogether common,
are not as uncommon or unprecedented as some have attempted to
argue in recent months against President Obama's recent act of
nominating Merrick Garland to the Court. As noted in the
resolution, several nominees have been confirmed to the Supreme
Court during the final year of a president's term, including:
Justice Anthony Kennedy by President Ronald Reagan in 1988
(nominated in November 1987, but confirmed in February 1988);
Justice Frank Murphy by President Franklin D. Roosevelt in 1940
(nominated and confirmed in January 1940); Justice Louis
Brandeis by President Woodrow Wilson in 1916 (nominated and
confirmed in the months prior to the 1916 election); Justice
George Shiras, Jr. by President Benjamin Harrison in 1892
(nominated and confirmed in July 1892); Justice Melville Fuller
by President Grover Cleveland in 1888 (nominated in April and
confirmed by July 1888); Justice William Johnson by President
Thomas Jefferson in 1804 (nominated and confirmed in March
1804); and Chief Justice John Marshall by President John Adams
AJR 32 (Alejo)
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in 1801 (nominated and confirmed in January 1801).
Arguably, to suggest that an outgoing president would lack the
power and duty to nominate and appoint a Supreme Court justice
simply because of an election would suggest that the members of
the Senate who are up for re-election, or who are retiring, also
lack the power and duty to give or withhold their advice and
consent on the nominee as well. Notably, nothing in the
Constitution, itself, which clearly envisions the need to hold a
presidential election every four years and to hold reelection of
Senators every six years (of whom a third come up for reelection
every two years), limits the appointment power and duty of the
president or of the advice and consent duty of the Senate to
non-election years.
In contrast, in all of the above-referenced instances, a
president nominated and/or the U.S. Senate confirmed a new
Supreme Court justice in the president's final year, thereby
suggesting that an absolute refusal by the U.S. Senate to
provide advice and consent on a nominee simply because an
election is looming and there is a possibility that a new
president might make a different nomination would actually be
unprecedented. While in the case of Justice Kennedy, the
nomination was made in the year prior to the election, his
appointment, for which advice and consent of the Senate is
required, occurred in the election year. In the case of John
Marshall-who turned out to be perhaps the most influential Chief
Justice to have served on the Court, particularly in
establishing the power of the Court-President John Adams
actually nominated Chief Justice Marshall after he had already
lost the 1800 presidential election to Thomas Jefferson.
Regardless, it appears that, historically, nominations are made
whenever vacancies actually occur, regardless of whether the
timing might coincide with an election year. In this case, the
vacancy occurred after Justice Scalia unexpectedly passed away
in February, and the appointment process, beginning with the
President's nomination and involving the advice and consent of
the U.S. Senate, should follow.
Support : None Known
Opposition : None Known
HISTORY
AJR 32 (Alejo)
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Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 54, Noes 22)
Assembly Judiciary Committee (Ayes 7, Noes 2)
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