Federal Courts and Nominations

Supreme Court Advocates Call Eight-Justice Bench ‘Harmful’ to Country

By Marcia Coyle

Sixteen U.S. Supreme Court practitioners on Tuesday added their voices to recent calls for Senate leaders to consider and vote on a nominee to fill the vacancy on the U.S. Supreme Court.

In a letter to Senate Majority Leader Mitch McConnell and Senate Minority Leader Harry Reid, the high court veterans wrote that if the vacancy were left open until after the presidential election and even into 2017, “approximately 120 cases spanning two terms would be decided by an eight-member court. It would be harmful to our nation for so many cases to be heard by only eight justices, inviting split decisions that do not resolve important legal questions and, even worse, potentially leaving unresolved conflicts among the lower courts.”

The practitioners who signed the letter include former members of the U.S. Department of Justice’s Office of the Solicitor General, former high court clerks, and heads of the Supreme Court and appellate practices at major firms, including Paul, Weiss, Rifkind, Wharton & Garrison; Orrick, Herrington & Sutcliffe; Robbins, Russell, Englert, Orseck, Untereiner & Sauber; and Wilmer Cutler Pickering Hale and Dorr. The full letter is posted below.

“We work in various settings, including private law firms, state governments, and law schools, and we practice in a variety of areas, including business, civil rights, criminal law, constitutional law, energy, environmental law, and employment law,” the lawyers wrote. “We have different ideologies and no doubt would have many different views on any given case. But we are united in the belief that a fully functioning Supreme Court is of vital importance to the country.”

One of the signers, Paul Smith, chairman of Jenner & Block’s Supreme Court and appellate practice and a former clerk to Justice Lewis Powell Jr., said, “It’s pretty hard to think of any arguments on the merits for keeping the court 4-4 for the next year.”

The letter was organized by the Constitutional Accountability Center, a progressive, nonprofit think tank and law firm.

The Constitutional Accountability Center has long worked on judicial nominations, the group’s president, Elizabeth Wydra, said. “I was very disturbed by the way the issue of the institutional integrity of the court has gotten lost in the partisan bickering over the vacancy and thought an important unheard voice was the voice of establishment Supreme Court practitioners who know the importance of a fully functioning court.”

The group sought lawyers who practiced in the court in a variety of areas, she said. “We have an alum from the Reagan solicitor general office as well as [Harvard Law’s] Larry Tribe. It runs the gamut,” Wydra said. “You have people who have been involved in liberal causes and also those who represent business interests.”

The letter is the latest in series of letters urging primarily Senate Republicans to act on the vacancy created by the Feb. 13 death of Justice Antonin Scalia. Letters also have been sent by 250 law firm partners and corporate general counsel, constitutional law schools and two former federal appeals chief judges.

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