Fair Courts E-lert: NC High Court Hears Retention Elections Case; Can the President Appoint Garland Without Senate Vote?

April 15, 2016


Can President Appoint Garland Without Senate Vote?

Two op-eds appearing in The Washington Post considered whether there is constitutional precedent for President Barack Obama to appoint Merrick Garland to the Supreme Court without an affirmative Senate vote. Last Friday, Gregory L. Diskant, posited in an op-ed that if the Senate fails to act after a “reasonable amount of time” then “Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power.” According to Diskant, a lawyer and board member at Common Cause, the power to nominate is separate from the power to appoint. Law professor Jonathan H. Adler wrote an op-ed responding to Diskant, stating that while he agrees “nomination and appointment are separate actions,” that “[u]nder the text of the Appointments Clause, the former is the president’s alone, while the latter is conditioned on Senate action.” According to Adler, the founders “considered, and ultimately rejected, a proposal to require the Senate to affirmatively reject a nomination in order to prevent a confirmation” and that “consistent practice establishes that the Senate may exercise its power to offer or withhold advice and consent in whatever manner it chooses.”


NC Supreme Court Hears Challenge to Retention Elections

On Wednesday, the North Carolina Supreme Court heard arguments in Faires v. State Board of Elections, which challenges the constitutionality of the use of retention elections for supreme court reselection, writes Mark Binker for WRAL.com. According to Binker, plaintiff Sabra Faires argues that retention elections – in which sitting judges stand for an uncontested up-or-down vote - do not fit the definition of elections under North Carolina’s constitution and “pointed to other uses of the word ‘election’ throughout the constitution where it means a contest between two people.” However, Justice Paul Newby questioned Faires on “why voters removed words likening judicial elections to General Assembly elections when they redrafted the constitution in 1971.” The state, which is defending the law, highlighted that “[t]here is a strong argument that judicial elections are different from other elections” and argued that "there is no constitutional language that restricts lawmakers from specifying how elections can be conducted.” The ruling will affect who appears on the primary ballot, for which “mail-in absentee voting…begins later this month.”

NJ Governor Nominates Democrat to State Supreme Court

On Monday, Gov. Chris Christie (R-NJ) withdrew his contentious nomination of Republican Judge David F. Bauman for the New Jersey Supreme Court in favor of attorney Walter F. Timpone, a Democrat. Kate King, for the Wall Street Journal, writes that Christie said he “look[s] forward to there being a fully constitutionally constituted court” and he believes Timpone to be “enormously well trained and [possessing] the right experience.” According to King, Timpone’s confirmation would “end the wrangling over a seat on the seven-member court that has been open for six years.” Christie said “I would have preferred to nominate a Republican. But then you have to get down to what’s going to work, I’ve decided to work with the Senate president on this.” The Senate president, Stephen Sweeney (D-District 3), said he “supports Mr. Timpone’s appointment and expects the Senate Judiciary Committee to hold a hearing ‘in the very near future.’” Senate Minority Leader Tom Kean (R-District 21) said: “I anticipate that if he is both qualified and does not bring an agenda to the bench that he will receive Republican votes.”


Senate Confirms TN District Court Nominee

The U.S. Senate confirmed its first judicial nominee in two months Monday, write the staff at RTT News. According to the outlet, “[t]he Senate voted 92 to 0 in favor of the nomination of Waverly Crenshaw Jr. to be U.S. District Judge for the Middle District of Tennessee.” Crenshaw was “nominated to fill an emergency vacancy on the district court in February of 2015 and was unanimously approved by the Senate Judiciary Committee last October,” but did not receive a confirmation vote until Monday “even though he had the support of both of Tennessee’s Republican Senators.” Judiciary Committee Ranking Member Patrick Leahy (D-Vt.) highlighted that “Senate Republicans have allowed just 17 judicial nominees to be confirmed since taking over the majority last year” compared to the “68 judicial nominees confirmed by the Senate Democratic majority in the final two years of President George W. Bush's administration.” However, Judiciary Committee Chairman Chuck Grassley (R-Iowa), countered that “Crenshaw is Obama's 324th judicial nominee confirmed since he took office in 2009, just two shy of the 326 confirmed during Bush's entire presidency.”