In a letter sent to President Obama on March 3, 2016, a different group of scholars of American history, politics, and the law wrote to President Obama to "express our dismay at the unprecedented breach of norms by the Senate majority in refusing to consider a nomination for the Supreme Court made by a president with eleven months to serve in the position."
[31] The scholars wrote that:
It is technically in the power of the Senate to engage in aggressive denial on presidential nominations. But we believe that the Framers' construction of the process of nominations and confirmation to federal courts, including the Senate's power of "advice and consent," does not anticipate or countenance an obdurate refusal by the body to acknowledge or consider a president's nominee, especially to the highest court in the land. The refusal to hold hearings and deliberate on a nominee at this level is truly unprecedented and, in our view, dangerous...
The Constitution gives the Senate every right to deny confirmation to a presidential nomination. But denial should come after the Senate deliberates over the nomination, which in contemporary times includes hearings in the Judiciary Committee, and full debate and votes on the Senate floor. Anything less than that, in our view, is a serious and, indeed, unprecedented breach of the Senate’s best practices and noblest traditions for much of our nation's history.
[31]
Signatories to this letter included, among others,
Thomas E. Mann, senior fellow at the
Brookings Institution;
Norman J. Ornstein, resident scholar at the
American Enterprise Institute; presidential historian
Doris Kearns Goodwin;
Pamela S. Karlan of
Stanford Law School;
Yale Law School professor
Harold Hongju Koh;
Geoffrey R. Stone of the
University of Chicago Law School; and historian
James M. McPherson of
Princeton University.
[31]
On March 7, 2016, a group of 356 law professors and other legal scholars released a letter (organized through the
Alliance for Justice) to the Senate leadership of both parties urging them "to fulfill your constitutional duty to give President Obama's Supreme Court nominee a prompt and fair hearing and a timely vote." The letter-writers argued that Senate Republicans' announcement that they would refuse to consider any Obama nominee was a "preemptive abdication of duty" that "is contrary to the process the framers envisioned in
Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government."
[32]Among the signatories to this letter were prominent law professors
Charles Ogletree,
Kenji Yoshino, and
Laurence Tribe.
[32]
On March 9, 2016, in a letter to Obama and Senate leadership, a group of almost 250 prominent corporate lawyers urged the Senate to hold hearings on the president's nominee.
[33] The letter stated that "When a vacancy on the court arises, the Constitution is clear ... 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' ... 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. 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."
[33] The letter, organized by the
Lawyers' Committee for Civil Rights Under Law,
[34] also expressed concern about the "profound effect" about the effects of an under-staffed Court on the national economy, particularly in close cases.
[33] Signatories to the letter came from a number of national
law firms, and well as counsel for
Google Inc..
[34]