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F I S C A L I M P A C T R E P O R T

SPONSOR Rawson

DATE TYPED 2/19/05

HB

SHORT TITLE Presidential Supreme Court Nominee Support

SB SM 22

ANALYST Hanika-Ortiz

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney Generals Office (AGO)

SUMMARY

Synopsis of Bill

SM 22 makes a request on behalf of the New Mexico State Senate for the state’s United States

Senators to “quickly” confirm all nominations to the United States Supreme Court by President

George W. Bush. SM 22 implies the New Mexico Senate’s support of President George W.

Bush’s commitment to appoint federal judges who will strictly interpret the United States Consti-

tution. The memorial is written to voice concerns over a perceived approach used by a few fed-

eral court judges and United States Senators to slow down the nomination process.

Significant Issues

The AGO has the following comment:

The President has authority to “nominate” Justices of the United States Supreme Court, and their

appointment is subject to the “advice and consent” of the United States Senate under Article II,

Section 2 of the Untied States Constitution. There is no provision, direct or indirect, for the state

legislature to narrow, focus or have an impact upon the exercise of the Senate’s advice and con-

sent with regard to judicial nominees. It appears to violate the constitutional requirement of ad-

vice and consent to direct New Mexico’s Senators to confirm in a speedy fashion whatever

nominations the President sends to the Senate.

Senate Memorial 22 -- Page 2

With the deterioration in Chief Justice William Rehnquist’s health, speculation has abounded

over potential nominees.

When asked about the kind of justices he would appoint to the Supreme Court, President George

W. Bush said, “I would pick people that would be strict constructionists. We’ve got plenty of

lawmakers in Washington, D.C. Legislators make law. Judges interpret the Constitution.” Fol-

lowing is a list of potential nominees that have been mentioned in various news accounts.

J. Michael Luttig – 4

th

Circuit Court of Appeals

J. Harvie Wilkinson III – 4

th

Circuit Court of Appeals

Samuel A. Alito, Jr. – 3

rd

Circuit Court of Appeals

Janice Rogers Brown – California Supreme Court

Miguel Estrada – Court of Appeals for the District of Columbia

Emilio Miller Garza – 5

th

Circuit Court of Appeals

Alberto R. Gonzales – Attorney General

Edith Jones – 5

th

Circuit Court of Appeals

Theodore B. Olson – Former Solicitor General

John G. Roberts – Court of Appeals for the District of Columbia

Larry Thompson – Brookings Institution

PERFORMANCE IMPLICATIONS

As of December 2004, there has not been a vacancy on the bench for over ten years.

FISCAL IMPLICATIONS

NFI

ADMINISTRATIVE IMPLICATIONS

The AGO reports that Senate Rule XXXI builds in some delay in the consideration of such

nominations, as by preventing a vote on the nomination the same day it is received and requiring

that the outcome not be sent to the President until two days after the vote, to give any Senator

voting in the majority the opportunity to move for reconsideration. Thus, depending on the in-

tent of the Memorial’s use of the word “quickly” there may be some conflict between the Reso-

lution and the Senate Rules.

OTHER SUBSTANTIVE ISSUES

The Supreme Court of the United States has ultimate judicial authority within the United States

to interpret and decide questions of federal law. The justices (currently nine) are appointed for

life by the President of the United States and confirmed by majority vote by the Senate. Its juris-

diction is limited by Article III of the U.S. Constitution to “cases” and “controversies” arising

under federal law:

When deciding a case, each justice can write his or her own opinion; all these statements are

made public. There is usually one opinion for the majority of the justices, which is designated the

“Opinion of the Court”. In addition to the majority opinion, there are often concurring and dis-

senting opinions. Usually, the majority opinion is signed by its author, but sometimes the court

Senate Memorial 22 -- Page 3

will issue an unsigned opinion “per curiam”, particularly if it summarily reverses a lower court’s

decision without full briefing or oral argument. The majority opinion is usually preceded by a

summary called a “syllabus”, which concisely summarizes the case and the decision. The sylla-

bus is accompanied by a disclaimer that it is prepared by the reporter of decisions and does not

constitute a part of the court’s opinion.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

The United States Senators will not receive a request from the New Mexico State Senate to move

quickly to confirm all nominations to the United States Supreme Court by President George W.

Bush.

AHO/yr