City Bar Urges Senate Leaders to Reconsider Position on Supreme Court Nomination

In a letter to Senator Chuck Grassley, Chair of the U.S. Senate’s Judiciary Committee, and Senator Mitch McConnell, Majority Leader of the U.S. Senate, the New York City Bar Association respectfully urges reconsideration of their recently stated refusal to consider any nomination to the United States Supreme Court made by President Obama. Citing the Appointments Clause of the U.S. Constitution, the Federalist Papers, constitutional law professor John O. McGinnis, a 1992 City Bar report on the Senate confirmation process, and Senate practice dating back to the John Adams presidency, the letter states that the President “has the duty to nominate an individual to serve on the Supreme Court when a vacancy arises, and the Senate has the duty to evaluate that nominee and provide its advice and consent to the President so as to facilitate the President’s further duty to appoint. This back-and-forth process was meant to create accountability and a check against abuse of power.” Further, by effectively rejecting the President’s nominee before the President acts to nominate, “the Senate is breaking with longstanding historical practice,” according to the letter. “Throughout our country’s history, Supreme Court vacancies have needed to be filled in the final year of a president’s term and the Senate has never issued a blanket refusal to consider a nominee before he or she was named by the President.” The letter argues that the Framers anticipated that the nomination and confirmation process would sometimes occur during times of conflict between the Senate and the President, as we witness today, “and decided that, under these circumstances, a public confirmation battle would be a good thing. The public has its say, by and through their elected representatives, and the Senate is free to approve or reject the President’s choice. If, after a review and confirmation process, the Senate rejects the President’s choice, the ball moves back to the President’s court to nominate someone else, which is exactly how the Framers wanted the process to work. The Appointments Clause was put in place so that offices could be filled, not remain vacant,” the letter states. “Based on the above,” the letter concludes, “we urge that you reconsider your position and make public the Senate’s willingness to provide advice and consent to the President once he names a nominee. No one wants or expects the Senate to rubber-stamp the President’s nominee—and, in fact, the rigorous and public vetting and debate engendered by the Senate confirmation process and, indeed, the entire system of checks and balances built into our Constitution, is a hallmark of American democracy. What is unique and unprecedented in this instance is the Senate Majority’s preemptive act of rejecting, out of hand, any nominee the President may name, before the President has acted to fulfill his duty to nominate. The Senate’s flouting of a sequential process that was painstakingly formulated in the Appointments Clause should not be countenanced.” The Appointments Clause of the U.S. Constitution, Article II, Section 2, Clause 2 reads: [The President] shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Read the City Bar’s letter here: