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Bar Associations, Lawyers, Urge SCOTUS Nominee And Vote

WASHINGTON DC 10.19.2017

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Much of the legal community is joining together this week to urge both the nomination of a new Supreme Court justice to replace the late Justice Scalia and a timely vote on the nominee by the Senate.

Bar Associations, Lawyers, Urge SCOTUS Nominee And Vote

Because of the high stakes of an empty seat on the Supreme Court, the corporate legal community and business interests jointly "seek the assurances that come with a fully staffed nine-member Court," says one open letter signed by nearly 250 senior lawyers, including partners at law firms, and current and former general counsels.

Addressed to President Obama, Judiciary Committee Chairman Grassley and Majority Leader McConnell, the letter encourages Obama to exercise his constitutional responsibility to nominate a SCOTUS pick, and encourages the Senate to fulfill its constitutional role and grant that nominee fair consideration and a full Senate floor vote.

"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," says former Colgate-Palmolive vice chairman and chief legal officer Andrew Hendry. "The uncertainty created by an empty chair on the Court for a prolonged period will damage American business." As one example, he gives Dow's recent $835M settlement, which a plaintiff's lawyer has called the first casualty on the business side.

The confirmation process should not be a liberal versus conservative issue, Andrew adds. "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.”

John Nonna

Among the nearly 250 signatories to the letter are lawyers from Paul Weiss, Arent Fox, O'Melveny, Google, Yale University and NYU Law.

Squire Patton Boggs New York co-managing partner John Nonna (above) says America’s business community expects and needs a fully functional Supreme Court. "That means nine justices. It is a dereliction of Constitutional duty for the Senate Majority Leader and Judiciary Committee Chair to call for a disobedience of the Constitutional mandate to provide advice and consent."

DC-based Arnold & Porter partner James Joseph says for advice and consent to function as intended by the founders of our government, all sides must engage in the process in good faith.

Supreme Court

Each Supreme Court term, the Court grants plenary review to about 80 cases, of about 7,000 to 8,000 that are submitted. The note says an eight-member Court for two terms would have damaging consequences that would be felt across our entire federal judicial system and negatively impact the business environment and the economy of the country.

It would be unprecedented for the Senate to refuse to perform the "advice and consent role" it is designated in Article II of the Constitution, the letter points out. Nearly a third of US Presidents have nominated a Supreme Court justice in an election year who was eventually confirmed. Six justices have been confirmed in a presidential election year since 1900 (Kennedy, Murphy, Cardozo, Clarke, Brandeis and Pitney).

Hispanic National Bar Association president Robert Maldonado

National diverse bar committees also submitted a joint letter to Senate Judiciary Chairman Grassley and Ranking Member Leahy strongly urging the Senate to uphold its Constitutional duty with a fair hearing and timely vote on any Supreme Court nominee.

The bar associations represent the combined interests of almost 200,000 lawyers and judges around the country and include the Hispanic National Bar Association (headed by Robert Maldonado, above), the National Asian Pacific American Bar Association, the National Bar Association, the National LGBT Bar Association and the National Native American Bar Association.

The letter also points to the uncertainty in the legal system that may stem from two terms of the Supreme Court without a full bench. "Delay in the Supreme Court’s ability to fulfill its duties caused by intentionally leaving the Court incomplete will have a direct impact on the legal rights of Americans, individuals and businesses of all backgrounds, across the country, and further erode public confidence in our legal system and in the functioning of our democracy."