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F I S C A L I M P A C T R E P O R T
SPONSOR Zanetti
DATE TYPED 2/11/05
HB HM 23
SHORT TITLE Presidential Supreme Court Nominee Support
SB
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
HM 23 makes a request on behalf of the House of Representatives of the State of New Mexico
for the state’s United States Senators to “quickly” confirm all nominations to the United States
Supreme Court by President George W. Bush. HM 23 implies the New Mexico House of Repre-
sentatives support of President George W. Bush’s commitment to appoint federal judges who
will strictly interpret the United States Constitution. The memorial is written to voice concerns
the New Mexico House of Representatives has over a perceived approach used by a few federal
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-
pg_0002
House Memorial 23 -- Page 2
vice and consent to direct New Mexico’s Senators to confirm in a speedy fashion whatever
nominations the President sends to the Senate.
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
lawmaker in Washington, D.C. Legislators make law. Judges interpret the Constitution.” Follow-
ing 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.
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
will issue an unsigned opinion “per curiam”, particularly if it summarily reverses a lower court’s
pg_0003
House Memorial 23 -- Page 3
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 House of Represen-
tatives to move quickly to confirm all nominations to the United States Supreme Court by Presi-
dent George W. Bush.
AHO/lg