Capitol Alert

How California’s U.S. Senate candidates would handle a Supreme Court nominee

The flag flies at half-staff at the Supreme Court in Washington on Wednesday in honor of Justice Antonin Scalia, who died last weekend at 79. Despite widespread insistence from the GOP-controlled Congress that President Barack Obama leave the decision to replace Scalia to the next president, Obama has said he had no intention of abdicating his responsibilities before leaving office early next year.
The flag flies at half-staff at the Supreme Court in Washington on Wednesday in honor of Justice Antonin Scalia, who died last weekend at 79. Despite widespread insistence from the GOP-controlled Congress that President Barack Obama leave the decision to replace Scalia to the next president, Obama has said he had no intention of abdicating his responsibilities before leaving office early next year. AP

President Barack Obama has successfully seated two nominees on the U.S. Supreme Court: Justice Sonia Sotomayor was confirmed 68 to 31, and Justice Elena Kagan by a vote of 63 to 37.

Now, as Obama weighs a replacement for the late Justice Antonin Scalia, among the considerations is whether they could clear the 60-vote threshold generally needed in the U.S. Senate for the high court. Majority Leader Mitch McConnell has said the Senate should not confirm a new justice until Obama leaves office.

The question of how to move forward has divided the U.S. Senate, as well as candidates running for the upper chamber. Following are responses to three questions The Sacramento Bee posed to the four major candidates running for Senate in California, listed in alphabetical order:

Republican Tom Del Beccaro

Should the Senate vote on President Obama’ nominee? And why?

The U.S. Senate should wait until the voters choose the next president and with that choice decide who should make the appointment. Justice Scalia himself said that our founders weren’t against gridlock. They designed a system for government to move slowly, not quickly – and gridlock was part of that. Given that an election is just ahead, it is a perfect time to consult the voters on who should make the choice for the next appointment.

What, if any, litmus test would you have for how you’d vote to confirm a Supreme Court justice?

The litmus test would be an understanding that it is the role of judges to interpret the law, not make the law.

How would you have voted on the confirmation of Chief Justice John Roberts, Justices Samuel Alito, Sotomayor and Kagan, and, briefly, why?

I supported Alito. At the time of his nomination, I would have supported Roberts, but he has done a poor job because his Obamacare decision deviated from my test to only interpret the law and not make the law. I would have voted against Kagan because she had no judicial experience and was an advocate for expansive judicial powers and violated my test. The reality is Sotomayor was the same as Kagan, but she was a sitting judge. She expressed the same views on expansive judicial powers as Kagan, so it’s unlikely I would have supported her.

Democrat Kamala Harris

Should the Senate vote on President Obama’s nominee? And why?

Yes, the Senate should vote on President Obama’s nominee. The president has a constitutional obligation to nominate a person to fill the vacant Supreme Court position, and the Senate has a constitutional obligation to consider that nominee fairly and either confirm or reject the nomination. The president and the Senate have a duty to fulfill these constitutional obligations, and there is no exception for the last year of a president’s term. The country should expect both the president and the Senate to fulfill all of their obligations until their successors assume office in January 2017.

Further, maintaining a vacancy on the court for what could be as long as 16 months would create enormous uncertainty for the many important cases the Supreme Court must consider and act upon. That uncertainty means that Americans could be denied justice and clear guidance on matters of great national significance. Just this term the court has on its docket matters involving access to a college education, immigration reform, a woman’s right to choose and whether businesses can refuse to provide employees with important health coverage because they object to filling out a simple form, just to name a few. And beyond the cases that have already been accepted for review, uncertainty will affect the court’s decisions about accepting important new cases for as long as the remaining justices can’t be sure that if they take a case they will be able to resolve it, one way or the other. The whole process of justice at the highest level of our system could be put on hold for well over a year.

What, if any, litmus test would you have for how you’d vote to confirm a Supreme Court justice?

My approach would be to evaluate any nominee based on her or his demonstrated professional qualifications, legal and judicial philosophy, and personal background and qualities. There are many important qualities to look for in a nominee. I won’t try to list them all here.

But I will be very interested in the nominee’s views on important areas of constitutional interpretation, such as privacy and reproductive choice, civil rights and voting rights. In the civil rights area, I will want to hear how the nominee would approach the challenge of protecting individual rights, freedom of expression and the role of the individual citizen, consumer and employee in an era of tremendous corporate wealth and power. And I will want to hear how the nominee views the role of the Constitution and the court in protecting the fundamental rights of all Americans.

I’d also be especially interested in a nominee who brings additional diversity of background and personal – as opposed to purely theoretical – experience about the impact the court’s decisions have on real people. As a member of just the second Berkeley elementary school class to be integrated in the wake of the court’s Brown v. Board of Education decision, I appreciate the significance of the court’s decisions. And when handing down opinions that affect the life of all Americans, the court’s credibility and the quality of its judgments are enhanced if the court’s membership reflects the diversity of America.

How would you have voted on the confirmation of Chief Justice Roberts, Justices Alito, Sotomayor and Kagan, and, briefly, why?

I would have evaluated each nominee fairly based on all the information that was available at the time and the criteria I noted above. Considering the question now, I am confident that I would have voted to confirm Justices Sotomayor and Kagan. Each had a distinguished career in the law, both expressed a legal philosophy sensitive to the practical effect of legal decisions on ordinary people, and both brought much-needed diversity to the court.

I would have voted against confirming Chief Justice Roberts and Justice Alito. After extensive questioning and a close review of their records at the time, Sens. Dianne Feinstein and Barbara Boxer concluded that neither justice supported women’s rights or the legal analysis establishing a woman’s right to choose. For those reasons, I too would have voted against their confirmations.

Democrat Loretta Sanchez

Should the Senate vote on President Obama’s nominee? And why?

It is the constitutional duty of the president of the United States to make a Supreme Court justice nomination. It is also the U.S. Senate’s constitutional responsibility to act on the president’s judicial nominations and to fill vacancies on the court without undue delay.

I believe that President Obama should promptly name a worthy successor to the late Justice Scalia, and the Senate should fulfill its constitutional duty to advise and consent, and to give that nominee a fair hearing and timely vote. No one should play politics with the court. The hasty and irresponsible statements by some Republican candidates and senators to delay or reject any nomination is an abdication of constitutional responsibility.

What, if any, litmus test would you have for how you’d vote to confirm a Supreme Court Justice?

I have no litmus test, and will evaluate each nominee individually. I do think that a nominee’s rejection of settled precedent in pursuit of a personal political vision is a disqualifier. For example, a nominee’s rejection of the basic framework of Roe v. Wade would place them outside the constitutional mainstream. Criteria that I would look for in a candidate: 1) Exemplary competence; 2) Ethical probity; 3) Commitment to mainstream legal values of equal protection, due process and legal stability. I would favor nominees with a judicial philosophy closer to Justice Sotomayor or Justice Kagan.

How would you have voted on the confirmation of Chief Justice Roberts, Justices Alito, Sotomayor and Kagan, and, briefly, why?

Justice Roberts: Nay. At the Department of Justice, Justice Roberts opposed the extension of the Voting Rights Act, and in his Supreme Court justice confirmation hearing, he didn’t make clear his commitment to the constitutional right to privacy. I would have sought further clarification of some of his views and record before voting.

Justice Alito: Nay. As a member of a circuit court of appeals, Justice Alito’s opinions indicated a lack of commitment to the fundamental right to privacy. In a dissenting opinion, he voted to exclude evidence of past conduct that defended and created a hostile and racist work environment.

Justice Sotomayor: Yay. Justice Sotomayor’s outstanding judicial record made her one of the strongest Supreme Court nominees of our time. I believe a person with such exceptional judicial wisdom belongs on the court.

Justice Kagan: Yay. Justice Kagan’s academic record, service in the White House Counsel’s Office and solicitor general appointment made her an outstanding nominee.

Republican Duf Sundheim

Should the Senate vote on President Obama’ nominee? And why?

The president should nominate. And the nominee should be submitted to the Senate. And the Senate should commence the process. But that’s all I can say at this point until we have a nominee and the Senate has done its due diligence.

What, if any, litmus test would you have for how you’d vote to confirm a Supreme Court justice?

My primary consideration is what is their view of the Constitution and their role relative to the Constitution. I believe justices should be guided by the wording of the Constitution and the statutes. I do not believe in judicial activism. The bottom line is: Do they have a strong judicial temperament that understands the limits of their role.

How would you have voted on the confirmation of Chief Justice Roberts, Justices Alito, Sotomayor and Kagan, and, briefly, why?

I definitely would have voted for Alito, then and now. With respect to Roberts, given what I knew then, I would have voted for him. I have been very disappointed with some of his decisions, but when you are voting in the Senate, you don’t have that luxury. On the others, I haven’t done a deep enough dive into what information was available at the time to say how I would have voted.

Christopher Cadelago: 916-326-5538, @ccadelago

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