Tags: Barack Obama | Presidential History | SOTU 2016 | Supreme Court | Josh Earnest

No Precedent for Supreme Court Nominee

No Precedent for Supreme Court Nominee

By Wednesday, 24 February 2016 01:42 PM Current | Bio | Archive

The Senate can certainly hold hearings on any nominee President Obama proposes for the Supreme Court this year, but there is no constitutional precedent that lawmakers do so, agreed distinguished legal experts I spoke to on Tuesday.

Kermit Roosevelt, professor at the University of Pennsylvania Law School, and Hans von Spakovsky, senior legal fellow at the Heritage Foundation, spoke to me hours after the White House and Senate Republicans fired shots at one another over the vacancy resulting from the death of Justice Antonin Scalia.

At the regular briefing for reporters at the White House, Press Secretary Josh Earnest denounced the refusal of Senate Majority Leader Mitch McConnell and other Senate Republicans to hold hearings on a nominee as “a historic and unprecedented acceleration of politicizing a branch of government that’s supposed to be insulated from politics."

Moments after Earnest’s remarks, all of the Republicans on the Senate Judiciary Committee signed a letter agreeing there would be no hearings on any Supreme Court nomination this year.

“Since 1875, a president’s nominee has never been denied a hearing unless that president later withdrew that nomination,” said Earnest, who stated a year that one of the experts noted was off by a half-century, the first Senate hearing on a high court candidate actually held in 1925.

“From William Howard Taft in 1908 to Ronald Reagan in 1988, there have been eight occasions in presidential election years in which nominations to the Supreme Court were sent to the Senate and were given a vote on the Senate floor,” said Roosevelt, great-great-grandson of Theodore Roosevelt.

“But,” he quickly added, “there was no Constitutional requirement that senators do this or even consider the nominations.” (Roosevelt also pointed out there was no requirement for hearings before the Senate Judiciary Committee.)

Roosevelt’s views were echoed by von Spakovsky, who told me “there is no constitutional or statutory requirement for [Supreme Court] nominees to testify before the Judiciary Committee. The practice started in 1925, when nominee Harlan Fiske Stone faced some opposition from liberal senators over his career as a corporate lawyer prior to becoming President Calvin Coolidge’s attorney general.

“To assuage opposition, Stone agreed to appear before the committee and answer questions.”

Von Spakovsky also pointed out that nominees were reluctant to testify because of the American Bar Association’s Code of Judicial Conduct which states that nominees “shall not make . . . statements or commit or appear to commit the candidate with respect to cases.”

When he testified before the Senate Judiciary Committee in 1939, FDR’s nominee Felix Frankfurter declared that “a nominee’s record should be thoroughly scrutinized by the committee,” but the nominee himself should take no part in that scrutiny.

Further historical evidence that no Senate hearings are required is found in the nomination of Republican Sen. Harold Burton to the court. On Sep. 19, 1945, President Truman named onetime Senate colleague Burton to the Supreme Court, who was unanimously confirmed by the Senate by voice vote on the same day, without hearing or debate.

John Gizzi is chief political columnist and White House correspondent for Newsmax.


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The Senate can certainly hold hearings on any nominee President Obama proposes for the Supreme Court this year, but there is no constitutional precedent that lawmakers do so.
Josh Earnest
Wednesday, 24 February 2016 01:42 PM
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