Constitutional Conundrum Thrust To Center Of Presidential Race

With the passing of U.S. Supreme Court Justice Antonin Scalia over the weekend, it is likely that the highest court in the land will sit in stalemate for at least the rest of the year.

The four liberal and four conservative justices remaining on the bench are to hear highly significant cases this term, covering topics that include abortion, provisions in the Affordable Care Act and voting rights.

Scalia’s death was announced just hours before the GOP held a presidential primary debate in Greenville, South Carolina. Accordingly, moderator John Dickerson, host of "Face the Nation," initiated the debate with a discussion of the eminent conservative Justice’s passing and what it means for the future of the Court.

The candidates echoed the Republicans: not another Obama Supreme Court nomination on my watch.

The arguments for stalling the confirmation of a ninth justice look hastily formed and sound directly in line with the unfounded obstructionism endured throughout President Obama’s tenure.

During Saturday’s debate, Sens. Marco Rubio and Ted Cruz (both involved in a confirmation vote) claimed that it has been 80 years since a lame-duck president confirmed a U.S. Supreme Court Justice in an election year, inferring that it would be inappropriate for Barack Obama to do so.

This reasoning, however, is historically and constitutionally inaccurate.

Justices Pitney, Brandeis, Cardozo, Clarke, Murphy, Brennan (a recess appointment by President Eisenhower) and Kennedy were all confirmed -- and all nominated, save Kennedy -- during an election year. (Brandeis and Cardozo are arguably two of our greatest jurists.)

As first-rate moderator Dickerson rebutted Cruz: “Kennedy was confirmed in ‘88,” an election year, by Republican president Ronald Reagan. However, The Washington Post’s debate fact-checker noted: “one can certainly understand why Republicans such as Cruz don’t count that as an election-year confirmation,” adding that Justice Kennedy’s confirmation “was not an election-year vacancy or an election-year nomination.”

Kennedy was nominated in November 1987, confirmed in February 1988.

President Obama will almost certainly nominate someone to the court. In his address following the Justice’s passing, President Obama affirmed that he would “fulfill [his] constitutional responsibilities to nominate a successor … there will be plenty of time.”

The Senate, despite Majority Leader Mitch McConnell’s clear obstructionist statement on the issue, also has a duty to vote on the president’s nominee. Whether they end up confirming someone is another matter.

There are reports that current U.S. Attorney General Loretta Lynch is high on the president’s list of potential nominees. With the anticipation that any nominee would be rejected, the administration could use the nomination to further expose the sectarian nature of Senate Republicans.

Cofounder of the highly influential SCOTUSblog Web site, Tom Goldstein writes that he believes: “The administration would relish the prospect of Republicans either refusing to give Lynch a vote or seeming to treat her unfairly in the confirmation process.” He noted that “either eventuality would motivate both black and women voters.”

The open seat on the court will surely pervade the political arena, as we move into the meat of primary season.

As for the GOP argument that the American people should weigh in on the selection, they have. In 2012, they reelected President Obama for a four-year term.

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