NYCLA Statement Calling upon the United States Senate to perform its constitutional duty regarding

STATEMENT

NYCLA Statement Calling upon the United States Senate to perform its constitutional duty regarding
 

CONTACT: Toni Valenti

(212) 267-6646 x210

tvalenti@nycla.org

The New York County Lawyers Association calls upon the United States Senate to perform its constitutional duty regarding the current vacancy on the US Supreme Court. The notion that a pending election justifies refusing to consider a nominee is unsupported by history.

March 4, 2016 – The New York County Lawyers Association was founded in 1908 by lawyers determined to: “. . . elevate the standard of the profession, strengthen the bench and make the administration of justice more simple, more rapid and more exact.” In working to advance these goals, we have heeded the guidance of our first president, John Dillon, and eschewed  “all connection with any political party or with any question or matter purely political.” Consistent with our founding principles, since 1908, NYCLA has been expressly committed to a process in the selection of judges that emphasizes merit and minimizes political, ethnic, religious, gender and racial considerations. 

We continue to reject any and all political intrigue and maneuvering in the selection of judges, Federal, State, or Local and we find the current dispute over President Barack H. Obama’s right, duty and authority to nominate a new Justice to the Supreme Court and the announced intention of Senate Republicans to refuse to consider any nominee inconsistent with the foregoing principles.

Within one hour of the February 12, 2016, public announcement of Justice Scalia’s passing Senator Mitchell McConnell (R. KY) Senate Majority Leader announced the Senate would not consider any nominee to the Supreme Court proposed by President Obama, claiming that the upcoming presidential elections make such a nomination inappropriate.

If the vacancy in issue is left open until there is a new president, the Supreme Court would have only 8 members for likely a year, which would be the second longest vacancy period in the history of the Republic, longer than the vacancy created when Justice Salmon P. Chase died (301 days) and nearly as long as the vacancy created when Abe Fortas resigned (391 days.) A long vacancy will create delays in the administration of justice. Cases with tie votes in the Supreme Court will have to be reheard at some point, if only to create a national body of law and not leave litigants with different precedent based on their residences in different circuits. This will delay justice and create more work for the Supreme Court. Any delays at the Supreme Court will be magnified by associated delays in the Courts of Appeals and District Courts, while these lower court judges wait for guidance from the Supreme Court.

The precedent created by the outright refusal to consider a nominee who is not yet announced is unthinkable. In recent history, there have been three proposed justices rejected for the Supreme Court, Robert Bork, Clement Haynsworth, Jr. and C. Harrold Carswell. All were granted hearings by Senates controlled by Democrats.   There has not been a Supreme Court candidate rejected since 1987 when Mr. Bork’s nomination was defeated, although Harriet Miers’ and Douglas Ginsberg’s nomination was withdrawn in 2005 and 1987 respectively. Since 1987, 9 justices have been confirmed, 7 by what might be said to be wide margins.  No Senate has ever ‘refused’ to hold hearings on a Supreme Court nominee. Overall, the Senate has confirmed 124 of the 160 people nominated to sit on the Supreme Court.

The notion that a pending election justifies refusing to consider a nominee is unsupported by history. John Adams nominated John Marshall on January 20, 1801, a few weeks before he yield the White House to Thomas Jefferson who had been elected the preceding November 1800. Grover Cleveland nominated Melville Fuller on April 30, 1888, who was confirmed on July 20, 1888, an election year. Benjamin Harrison nominated George Shiras, Jr. July 19, 1892, and nominated Howell Jackson February 2, 1893, he was confirmed on February 18, 1893. President Harrison left office a few weeks after the Jackson confirmation, yielding the White House to a Democrat, Grover Cleveland who had been elected the prior November 1892. In timing similar to today, William Taft nominated Mahlon Pitney, February 19, 1912, the year that Woodrow Wilson was elected president. Wilson nominated John Clarke July 14, 1916, a presidential election year. Again, in timing similar to today, Herbert Hoover nominated Benjamin Cardozo on February 15, 1932, the year of Franklin D. Roosevelt’s election. Lyndon Johnson made two nominations in 1968, both later withdrawn. Gerald Ford, the only person to hold the Presidency without prevailing in a national election, made an appointment to the Supreme Court, John Paul Stevens on November 28, 1975. The holders of seats in the United States Senate never refuse to consider any of these candidates and all, except as noted, were confirmed, notwithstanding appointment by unelected, defeated or lame duck presidents.

NYCLA calls upon the President and the United States Senate to perform their respective constitutional duties under the Appointments Clause of the Constitution, Article II, Section 2, Clause 2 and take timely and appropriate steps to fill the vacancy on the Supreme Court created by the untimely and tragic death of Antonin Scalia.  The President has announced that he will present nominee in due course.  The Senate should perform its Constitutional duty and give the nominee a fair hearing and a vote.

Footnotes

1. Remarks by Alton Parker (1904 Democratic Party Candidate for Vice President and Second President of NYCLA) on the occasion of his becoming a Vice President of NYCLA, May 21, 1908
2.  John Dillon (former Justice of the United States Court of Appeals for the Eighth Circuit, former President of the American Bar Association) on the occasion of his induction as NYCLA’s first President, May 21, 1908
3.   Report of the Task Force on Judicial Selection in New York State: A Roadmap to Reform approved by the NYCLA Board of Directors, May 8, 2006 at page 1
4. Id.
5.  Due in part to the United State Senate rejection of C. Harrold Carswell and Clement Haynsworth, Jr. , as nominees to the Supreme Court
6. See Senate.gov/pagelayout/reference/nominations/nominations.htm3752790.1 53656-0001