As soon as the death of Supreme Court Justice Antonin Scalia was announced, chaos broke loose in Washington. The consistently conservative justice was appointed by President Reagan, and legally, the current president is supposed to nominate a Supreme Court Justice when the previous one dies. However, Congress is supposed to confirm the president’s choice, and the current Republican Congress has a history of trying to block everything that President Obama does.
Some members of Congress have even gone on record to state that they will filibuster to block the nomination of whoever President Obama nominates, even if it is a person they might not have a problem with. Many Republicans are clamoring for President Obama to delay a nomination. According to them, it is a matter of courtesy and etiquette for a president at the end of his or her term to leave the nomination for the presidential successor.
Senator Marco Rubio is known for his controversial and narrow views on abortion, immigration, and other important issues, and this Republican senator has told MSNBC’s Chuck Todd that Obama should not be nominating anyone. Rubio states that “it’s not just for the Supreme Court, even for appellate courts, both parties have followed this precedent. There comes a point in the last year of the president, especially in their second term, where you stop nominating, or you stop the advice and consent process.” It turns out that Rubio’s statement is completely false and lacking in any sort of historical background.
It is very rare for a president to have the opportunity to appoint a justice in the last year of a term. An analysis by Politifact has shown that this situation has only happened six times. In five of the six cases, Presidents Wilson, Roosevelt, Eisenhower, Taft, and Hoover all chose to nominate a Supreme Court Justice in their last term. In the other case, President Johnson attempted to nominate a new justice, but the retiring justice decided to delay his retirement instead. Rubio’s statement is also false when the lower courts are taken into account, since Presidents Bush, Clinton, and Reagan have all nominated several people for the District Court and Court of Appeals during their last term.
This blatant falsehood is being spread around by many Republicans right now. Claiming that a president should allow his successor to nominate a new justice is merely a delaying tactic with no law or precedent backing it up. This tactic is unlikely to prevent President Obama from choosing a nomination for Justice Scalia’s seat on the Supreme Court, but it may succeed at making him look like an uncouth opportunist to the people who believe the conservative falsehoods. The Republicans hope to delay the nomination because they would like to have their party win the presidential election and nominate another conservative Supreme Court Justice.
The Supreme Court Justices are currently split evenly between conservative and liberal, so whoever ends up being the new justice will have a huge influence on how laws are interpreted for the next several years. It is highly likely that the next justice will be either liberal or moderate, because it would be almost impossible for the Republican party to delay President Obama from fulfilling his rightful duty to appoint a new Justice for the Supreme Court. President Obama still has quite a bit of time left in office, so he will most likely be able to push through his nomination at some point, despite the delaying tactics of the Republicans.