BILL ANALYSIS Ó
AJR 32
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CONCURRENCE IN SENATE AMENDMENTS
AJR
32 (Alejo)
As Amended May 5, 2016
Majority vote
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|ASSEMBLY: | | (April 21, |SENATE: |26-12 |(August 15, |
| |54-22 |2016) | | |2016) |
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Original Committee Reference: JUD.
SUMMARY: Urges the United States Senate to fairly consider
President Barack 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.
2)Makes findings and declarations that President Barack Obama
was duly reelected as President of the United States in 2012,
and that having reelected President Barack Obama the American
people have already voiced their choice as to who should
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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.
The Senate amendments make minor clarifying amendments and add a
co-author.
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
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.
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
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
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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. Constitution Article
II Section 2 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.
Analysis Prepared by:
Thomas Clark / JUD. / (916) 319-2334 FN:
0003470
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