Republicans Have No Argument for Waiting on Supreme Court Appointment

President Obama signing Elena Kagan's commission after Senate
confirmation. Photo: Pete Souza, The White House | Wikipedia.

Following the death of Supreme Court Justice Antonin Scalia, it falls to President Barack Obama to nominate a new Justice to take that seat, and to the Senate to approve that nomination. It is a relatively clear-cut process, and is one of the oldest, and potentially most important, tasks assigned to the President of the United States.

As Justices serve for life, presidents who get to appoint one can have influence well beyond their years in office, such as when President Reagan nominated Justice Scalia.

President Obama has already appointed two Justices, Sonia Sotomayor and Elena Kagen, which is the same number appointed by President Clinton and the second President Bush. Appointing a third Justice would be impressive, and allow Obama’s legacy to stand well after his last year in office. But that is rankling Republican feathers, both in the Senate and among those running for the RNC presidential nomination.

Those politicians claim that Obama shouldn’t appoint someone during an election year. They say they will refuse to vote on the issue and that pressing for a nomination would politicize the process even more. All of these are excuses for playing the waiting game in the hope that one of their candidates will win and will appoint another conservative to fill Scalia’s vacancy.

Though they do claim to have history on their side, because it’s been 80 years since a Justice was appointed during an election year, that argument simply doesn’t hold water. Neither the Senate, nor the Republican Party, has any legal recourse in this matter.

The Constitution is clear on how the appointment process works, and it’s always worked that way. There is no legal or historical precedent for waiting on the nomination. There is a precedent for Senators refusing to vote on and issue or try to delay a vote, which is the only viable option Republican opponents of the President have. But they can’t stop the President from discharging his constitutionally appointed duties.