On the U.S. Supreme Court Nomination and Appointment Process – Debra L. Raskin

Debra L. Raskin

President’s Column, March 2016

Whenever a significant event is reported in the news, I often am asked, “Is the City Bar saying anything about this?”and I am met with disappointment on those occasions when I have to respond in the negative. Our decision not to speak on an issue may be based on any number of factors including that the issue is, by and large, a purely political one.

Much like the sort of deliberation that still occurs here today, the Special Committee on the [City Bar’s] Second Century stated in a 1972 report:

For present purposes then, we are not able to suggest a formula which would be useful for delimiting the kinds of public question about which the Association might appropriately speak.  Experience suggests that questions are condemned as “political,” and, hence, presumably outside the circle of the Association’s concern by those who perceive that they are able to lose on the merits of the question. . . . Nor does it seem that the hypothetical circle of interests within which are matters legal and outside of which are matters political exists in theory or in fact.  Like the aphorism of Justice Holmes concerning ‘where the line should be drawn’ our circle exists, if at all, in a sequence of points which the Association ought to put down from time to time with care.

So it is with great care that I speak now against the recently stated refusal by the United States Senate majority leadership to consider any nomination to the United States Supreme Court made by President Obama in this, his last year in office. In a letter to Senate Majority Leader McConnell and Senate Judiciary Committee Chair Grassley, I explain why I believe the Senate Majority is violating the Appointments Clause of the U.S. Constitution as well as long-standing historical practice and I urge their reconsideration. I further state that the City Bar stands ready to undertake an evaluation of the President’s nominee when he or she is named and, whatever the circumstances, to express our findings to the Senate. We have fulfilled this responsibility in an objective, deliberate and non-partisan fashion since May 1987 and have favorably evaluated the nominations of all Justices currently sitting on the Supreme Court.

To those who might say that my letter inappropriately treads on political ground, I understand that sentiment but I do not believe it describes accurately the question at hand – that is, whether the Senate can preemptively refuse to carry out a duty assigned to it in the Constitution. I write this letter in the same spirit as the many City Bar letters I have signed underscoring the importance of following the rule of law in other countries. Except here, I am urging that we heed our own advice.

Read the City Bar’s letter to Senate leaders here: