I sent the following letter to both of Alaska’s Senators – Lisa Murkowski and Dan Sullivan. If you want to see the Senate act on a Supreme Court appointment, I strongly urge you to contact your Senators as well. If enough of us act, perhaps something will come of it. Nothing will happen if we do nothing.
I am writing you today to urge you to reconsider your opposition, sight unseen, to any appointment made to the Supreme Court by President Obama. You have said that it would be “unprecedented” for a President to send a nominee to the Senate in an election year.
To put it bluntly yet give you the benefit of the doubt, you have have been lied to. As reported at the SCOTUS blog entry “Supreme Court vacancies in presidential election years” published on February 13, 2016, there have been several Supreme Court appointments and/or Senate confirmations in election years:
1912 – President Taft nominated Mahlon Pitney, confirmed by Senate 50-26
1916 – President Wilson nominated Louis Brandeis, confirmed by Senate 47-22
1916 – President Wilson nominated John Clarke, confirmed unaminously by Senate
1932 – President Hoover nominated Benjamin Cardozo, confirmed unaminously by Senate
1940 – President Franklin D Roosevelt nominated Frank Murphy, confirmed by Senate
1987 – President Reagan nominated Anthony Kennedy after failed nominations of Bork and Douglas Ginsburg, confirmed by Senate in election year 1988 97-0.
I know that this information has been available to you for a few weeks and I am sorrowful it has not changed your mind.
While not completely without precedent, the 330 day plus wait you propose for next Supreme Court nominee is extremely rare. Given the Court’s makeup, it also seems likely we will have a set of 4-4 decisions which turn our country into a patchwork of conflicting laws. This cannot be good for the business community or the country as a whole.
I also find it surprising that your opposition is reported as unconditional – that even if President Obama appointed a Republican or someone who had previously been confirmed to a federal judgeship 98-0, you would not allow as much as a hearing. What could possibly make these justices unpalatable now? Reasons might come out in hearings, but you reportedly don’t want to hold them. So it looks like you are willing to pass up qualified judges acceptable to a Republican Senate.
But what happens if we elect a Democratic President? What happens then? Do you accept a nomination from President Sanders or President H. Clinton, even if their pick is less advantageous to you than someone President Obama proposes? Or will you continue to keep the court in deadlock 4-4 in hopes that a liberal justice will die and tilt the Court back in your favor? We deserve to know what your plans are before the next time you are up for a vote.
I should also point out that even if we elect a Republican President, there is no guarantee that his nominee will be the conservative voice you appear to desire. I remind you that Justice Kennedy, the swing vote on the court, was appointed by President Reagan. Most famously, President Nixon nominated Warren Burger to be Supreme Court Chief Justice with the expectation that he would lead the way in dismantling liberal decisions of the Warren court. This did not happen, Chief Justice Burger was even more liberal in some ways. In fact, Chief Justice Burger was in the majority in Roe v. Wade. A Republican President is no guarantee of a conservative justice.
So instead of waiting 300 plus days of uncertainty in the law of the land in hopes that the President you want will appoint the Justice you want who will act in the way you hope, I ask you act on the nomination that President Obama sends you. Urge the Judiciary Committee to hold thorough hearings and have an up or down vote.
I am NOT urging you to vote Yes or No on a nominee. That is up to you after you give full consideration to the President’s appointment. I do ask, urge and expect that you will give full consideration to a nominee and not keep the country in limbo. I further insist that if you are given a nominee you have previously voted to confirm, that you vote to confirm them again unless new information has come to light.
Respectfully, Daniel Cornwall
Supreme Court vacancies in presidential election years (SCOTUS Blog, 2/13/2016) – http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/
Sen. Richard Blumenthal correct that the longest Supreme Court vacancy in 30 years has been 237 days (Politifact, 2/18/2016) – http://www.politifact.com/truth-o-meter/statements/2016/feb/18/richard-blumenthal/sen-richard-blumenthal-correct-longest-supreme-cou/
History of the Burger Court (Washington University Law School) – http://supremecourtopinions.wustl.edu/?rt=index/history
Roe v. Wade: The Aftermath of one of the Most Controversial Supreme Court Decisions (Loyola Student Historical Journal) – http://www.loyno.edu/~history/journal/Oehlke.htm