The Supreme Court chambers are a little emptier than normal, and Washington, D.C. has been darkened by the recent death of Supreme Court Justice Antonin Scalia.
All parties agree that Scalia had one of the nation’s greatest legal minds, but when it comes to finding his replacement, both sides of the aisle disagree over whether or not the president can make a nomination during his last year in office.
“There’s no unwritten law that says [a nomination] can only be done on off years,” President Barack Obama told a crowd in California earlier this week. “That’s not in the constitutional text.”
But Florida Senator Marco Rubio disagrees.
“It’s been both parties that have followed this precedent,” he said last week. “There comes a point in the last year of a president, especially in their second term, where you stop nominating or you stop the advice and consent process.”
But Rubio’s claim is false, according to the Constitution, says Santa Clara University law professor Pratheepan Gulasekaram.
Article II, Section II, of the United States Constitution does talk about the president’s right to nominate and the Senate’s duty to deliver “advice and consent” on a Supreme Court nominee, but it doesn’t say anything about a timeline.
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“That’s political theater,” Gulasekaram said of Rubio’s claim. “There is absolutely no restriction on the ability of a president to nominate somebody even with one month left in his term, other than the practicalities of actually being able to finish that process.”
The Heritage Foundation, based in Washington, D.C., echoes Rubio’s concern about the president making a nomination so late in his tenure.
“If you look at the last eighty years, the precedent in the Senate under both parties has been that they won’t confirm a nominee for the Supreme Court when the vacancy occurs in an election year,” said Hans A. von Spakovsky, a senior legal fellow at the right-leaning think tank.
That’s not entirely true, according to the history books.
In 1968, Lyndon B. Johnson nominated a justice in the final year of his presidency, but the bid failed.
Then in 1987, Ronald Reagan nominated Justice Anthony Kennedy, who was confirmed in 1988, the final year of Reagan’s presidency.
It is true that judicial nominations this late in a president’s term are not common. Conservatives like Senator Ted Cruz claim the court majority could swing on the kind of confirmation.
“We’re not going to give up the U.S. Supreme Court for a generation by allowing Barack Obama to make one more liberal appointee,” he said.
However, that hasn’t occurred in decades.
“I plan to fulfill my constitutional responsibilities to nominate a successor in due time,” said President Obama during his speech in California this week.
He’s also insistent the Senate fulfill its responsibility for a timely vote. This claim, however, rings hollow, since the Constitution doesn’t contain a clause for the time of a Senate hearing or vote.
“There’s no provision preventing them from doing it, but it’s more a question of whether we want a constitutional culture in which the justices of the Supreme Court or the nomination process can be subject to these partisan whims,” Santa Clara’s Gulasekaram said.
Neither side is technically breaking any formal rules, but a delay until the next election would break a historical record.
The longest wait for a Supreme Court candidate was 125 days. President Obama has 336 days left in his term.
