Constitutional Law

Fill Scalia vacancy, urge nearly 250 corporate lawyers in letter to Obama and Senate leaders

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Seeking to avert a potential stalemate in the selection process to fill a U.S. Supreme Court vacancy, nearly 250 prominent lawyers in the corporate legal and business community sent a letter Wednesday to President Barack Obama and top U.S. Senate leaders.

The letter (PDF) calls on Obama to appoint a nominee for the seat left empty by the recent death of Justice Antonin Scalia and urges the Senate to follow its constitutional role by providing fair consideration and a full Senate floor vote once the nomination is made,

“When a vacancy on the court arises, the Constitution is clear,” the letter says, after expressing concern about the “profound effect” that an eight-member court unable to provide a five-justice majority verdict in close cases could have on the nation’s economy.

“Article II, Section 2 states that the President ‘shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court,’ ” the letter says, noting that no exception applies to presidential election years.

And there have in fact been six such election-year confirmations during the last century (including, although the letter doesn’t emphasize this, two of particular note—Justice Benjamin Cardozo, appointed by President Herbert Hoover in 1932, and Justice Louis Brandeis, appointed by President Woodrow Wilson in 1916).

“Though the Senate may ultimately choose not to consent to the president’s nominee, it would be unprecedented for the senate to refuse to perform its ‘advice and consent’ role in this context,” the letter continues. “Not only does the Constitution direct the sitting president to nominate an individual to fill a vacancy on the court no matter whether it is an election year, nearly one third of all presidents have nominated a justice in an election year who was eventually confirmed.”

Among those who joined in the call for the constitutional process to be followed is Andrew Hendry, a retired executive of Colgate-Palmolive.

“Having been the chief legal officer of two major American companies over more than a quarter-century, I can assure you that American business needs a complete nine-justice supreme court,” he said in a news release by the Lawyers’ Committee for Civil Rights Under Law about the letter.

“The uncertainty created by an empty chair on the court for a prolonged period will damage American business,” he said, citing a recent $835 million settlement by Dow Chemical, which the company attributed to Scalia’s absence.

“Proceeding with the confirmation process should not be a liberal versus conservative issue,” Hendry said. “The court needs to be restored to its full complement of nine justices as quickly as possible, giving the business community the predictability to which it is entitled.”

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