Democrats are screaming bloody murder that a president has a right to nominate a replacement for a vacancy in the Supreme Court regardless when in his/her term it occurs. And they’re right. And Republicans are screaming bloody murder that a nominee will have to wait until the next president, Democrat or Republican is elected. And they are right. So what in hell is going on with this debate?
It’s simple. The Senate is who decides. Obama can certainly nominate anyone he wants, any time he wants. Once that feat has been accomplished, the rest is up to the Senate. And they can rush the nominee through the confirmation process or take their sweet time about it. The Constitution says there is nothing that requires the Senate to act quickly on any nomination of any person the president sends up to get confirmed. That includes Antonin Scalia’s replacement.
It has an 80 year tradition behind it that presidents in their last year in office (of the two-term presidents) usually will concede the nomination to the incoming president. There has been one exception to that rule and that was back in 1987/1988 during Ronald Reagan’s last year, but that is kind of a misnomer. Reagan was replacing Justice Lewis Powell, who had retired in June of 1987. Reagan nominated Anthony Kennedy to replace Powell in 1987 and he was confirmed in 1988, which was Reagan’s last year in office. The actual nomination took place in Reagan’s seventh year, not his eighth, so it’s really comparing apples to oranges. You actually have to go back to 1932 (which is 84 years) when Herbert Hoover nominated Benjamin Nathan Cardozo in February. He was confirmed the same month. Hoover then went on and lost the election that November.
Technically, Hoover wasn’t a lame duck because it was his first term, not second. He just lost the bid for re-election (mostly because of the Great Depression). So, you’d have to go back to the 19th century to find an actual lame duck who nominated a Supreme Court Justice in his final year in office. That said it should basically void any and all claim that Obama has to nominating someone. Of course, the Constitution doesn’t have anything in it that says he can’t nominate anyone he wants…he can. But it also doesn’t say the Senate has to act on that nomination if they don’t want to.
And here’s the interesting rub in all of this. The Constitution outlines that there should be a Supreme Court. It doesn’t say how many people have to serve on that court. In fact, in our history, we’ve had all sorts of numbers on the court, it hasn’t always been nine. It’s only been that way through all of our lifetimes. But in the early days of the country, there were more and less than nine justices. We can get along fine with eight for a year (of course there are going to be some decisions that are 4-4 ties, so they get kicked back to the lower court who’s ruling then stands). But modern tradition has always allowed the incoming president to choose the next Supreme Court Justice. It’s only because Obama is a crybaby that he wants to do it.
Carry on world…you’re dismissed!