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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)
<http://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html?_r=0> [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) <http://www.politico.com/story/2016/02/mitchmcconnell-antonin-scalia-supreme-court-nomination-219248> [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)
<http://www.npr.org/sections/thetwo-way/2016/03/16/470643431/-i-ve-made-my-
AJR 32 (Alejo)
Page 2 of 5
decision-on-supreme-court-nominee-president-obama-says> [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 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.
AJR 32 (Alejo)
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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 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
AJR 32 (Alejo)
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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 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
AJR 32 (Alejo)
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HISTORY
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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