Charles Ogletree.
Harvard Law School’s Charles Ogletree is one of the professors who signed a letter to Senate leaders. (Photo: Diego M. Radzinschi/NLJ)

A group of more than 350 legal scholars on Monday called upon senators to fulfill their constitutional obligation to consider a U.S. Supreme Court nominee submitted by President Barack Obama.

In a letter sent to Senate leaders, 356 professors and scholars said that leaving an eight-justice court in place would have dire consequences. They asserted that allowing Justice Antonin Scalia’s seat to remain unfilled until after the presidential election could cripple the court and set bad precedent.

“This preemptive abdication of duty is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government,” reads the letter, addressed to Senate Majority Leader Mitch McConnell, R-Kentucky; Senate Minority Leader Harry Reid, D-Nevada; Judiciary Committee chairman Charles Grassley, R-Iowa; and ranking Judiciary Committee member Patrick Leahy, D-Vermont.

Reached for comment, a spokesman for McConnell wrote in an email, “The Leader’s position is well-known.”

Alliance for Justice, a liberal organization focused on the federal judiciary, circulated the letter.

Law scholars from more than 100 law schools signed on, including Harvard Law School professors Charles Ogletree and Laurence Tribe; University of California, Irvine School of Law Dean Erwin Chemerinsky; University of California, Berkeley School of Law professor Herma Kay; Stanford Law School professor Deborah Rhode; and New York University School of Law professor Kenji Yoshino.

“I think it’s impossible to know how it’s going to play out until we see who the nominee is,” Chemerinsky said in an interview Tuesday.

If Obama nominates someone with “impeccable credentials,” a “good life story,” and no “liberal paper trail,” some vulnerable Republicans facing re-election may feel pressure to hold hearings, he said.

Thus far, Obama is said to be vetting Merrick Garland, Sri Srinivasan, Jane Kelly and Ketanji Brown Jackson—all federal judges who have previously enjoyed Republican support.

The law professors’ letter calls for a “prompt and fair hearing and a timely vote.” It points out that Obama has more than 300 days remaining in his term, and that nothing in the Constitution says the president lacks the authority to make judicial appointment in their final year in office.

“In fact, six justices have been confirmed in presidential-election years since 1900, including Louis Brandeis, Benjamin Cardozo and Republican-appointee Anthony Kennedy, who was confirmed by a Democratically-controlled Senate during President Ronald Reagan’s last year in office,” the letter reads.

Moreover, a long-term vacancy on the court would hamper its ability to rule on federal law, since a 4-4 split means matters will either remain unresolved or be pushed off until the court is fully staffed, the professors argue.

“If the Senate refuses to consider President Obama’s nominee, the potential for deadlock on major constitutional and statutory issues will persist for at least the better part of two terms,” the letter says.

Chemerinsky said he was delighted to sign on, though it remains to be seen what impact, if any, the letter will have in the divided and entrenched Senate.

“Ultimately, I think it’s so important that we as experts speak out and express our view of how important it is that a hearing be held,” he said. “It’s unprecedented for the Senate to say, ‘We won’t hold hearings at all.’ ”

A group of more than 350 legal scholars on Monday called upon senators to fulfill their constitutional obligation to consider a U.S. Supreme Court nominee submitted by President Barack Obama.

In a letter sent to Senate leaders, 356 professors and scholars said that leaving an eight-justice court in place would have dire consequences. They asserted that allowing Justice Antonin Scalia ’s seat to remain unfilled until after the presidential election could cripple the court and set bad precedent.

“This preemptive abdication of duty is contrary to the process the framers envisioned in Article II, and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government,” reads the letter, addressed to Senate Majority Leader Mitch McConnell, R-Kentucky; Senate Minority Leader Harry Reid, D-Nevada; Judiciary Committee chairman Charles Grassley, R-Iowa; and ranking Judiciary Committee member Patrick Leahy, D-Vermont.

Reached for comment, a spokesman for McConnell wrote in an email, “The Leader’s position is well-known.”

Alliance for Justice, a liberal organization focused on the federal judiciary, circulated the letter.

Law scholars from more than 100 law schools signed on, including Harvard Law School professors Charles Ogletree and Laurence Tribe; University of California, Irvine School of Law Dean Erwin Chemerinsky; University of California, Berkeley School of Law professor Herma Kay; Stanford Law School professor Deborah Rhode; and New York University School of Law professor Kenji Yoshino.

“I think it’s impossible to know how it’s going to play out until we see who the nominee is,” Chemerinsky said in an interview Tuesday.

If Obama nominates someone with “impeccable credentials,” a “good life story,” and no “liberal paper trail,” some vulnerable Republicans facing re-election may feel pressure to hold hearings, he said.

Thus far, Obama is said to be vetting Merrick Garland, Sri Srinivasan , Jane Kelly and Ketanji Brown Jackson —all federal judges who have previously enjoyed Republican support.

The law professors’ letter calls for a “prompt and fair hearing and a timely vote.” It points out that Obama has more than 300 days remaining in his term, and that nothing in the Constitution says the president lacks the authority to make judicial appointment in their final year in office.

“In fact, six justices have been confirmed in presidential-election years since 1900, including Louis Brandeis, Benjamin Cardozo and Republican-appointee Anthony Kennedy, who was confirmed by a Democratically-controlled Senate during President Ronald Reagan’s last year in office,” the letter reads.

Moreover, a long-term vacancy on the court would hamper its ability to rule on federal law, since a 4-4 split means matters will either remain unresolved or be pushed off until the court is fully staffed, the professors argue.

“If the Senate refuses to consider President Obama’s nominee, the potential for deadlock on major constitutional and statutory issues will persist for at least the better part of two terms,” the letter says.

Chemerinsky said he was delighted to sign on, though it remains to be seen what impact, if any, the letter will have in the divided and entrenched Senate.

“Ultimately, I think it’s so important that we as experts speak out and express our view of how important it is that a hearing be held,” he said. “It’s unprecedented for the Senate to say, ‘We won’t hold hearings at all.’ ”