• John McGary, Woodford Sun Staff

Here's Johnny - Supreme thoughts

The person I'd most like to hear speak about President Obama's duty to appoint a new Supreme Court justice is the person whose death made it necessary: Justice Antonin Scalia. I'm certainly no legal scholar - or any scholar at all, really - but I believe it's accurate to say that Scalia thought many of his peers and predecessors erred in not abiding by a strict interpretation of the U.S. Constitution. So let's see what that document says about who appoints whom, and when: Article 2, Section 2 reads, in part, ". He (the president) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court ." Nowhere in those somewhat wordy lines, or in the preceding or following sections of the Constitution, is the phrase, "unless it is the year of a presidential election." Republicans at Saturday night's presidential debate/wrestling match fell over themselves to say that President Obama shouldn't nominate a successor for Scalia, and that if he did, Senate Republicans shouldn't allow a vote. Since then, leading Republicans have said that any person Obama nominates should not be confirmed. Hmmm. He could pick a federal judge who's already sailed through the Senate, then see if the GOP has the (insert adjective here) to run out the clock. Anyway, here's what Amy Howe of SCOTUSblog discovered about Supreme Court nominations in presidential election years in the 20th century. ". The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a (Supreme Court) nominee in a presidential election year because of the impending election. In that period, there were several nominations and confirmations of justices during presidential election years," Howe wrote. Here's her evidence: President Taft's March 12, 1912, nomination of Mahlon Pitney was confirmed six days later. President Wilson's Jan. 28, 1916, nomination of Louisville native Louis Brandeis was confirmed on June 1, 1916, while his July 14, 1916, nomination of John Clarke was confirmed 10 days later. President Hoover's Feb. 15, 1932, nomination of Benjamin Cardozo was confirmed nine days later. President Franklin Roosevelt's Jan. 4, 1940, nomination of Frank Murphy was confirmed 12 days later. President Reagan's Nov. 30, 1987, nomination of Anthony Kennedy was confirmed on Feb. 3, 1988. That's six Supreme Court nominations confirmed during an election year this century, with all but one of the nominations made during an election year. The exception was the Gipper's call, confirmed by a Democratic-controlled Senate. The day after the South Carolina debate, U.S. Sen. Marco Rubio told "Fox News Sunday" host Chris Wallace that things might be different had Obama made the nomination, say, three months ago. "It doesn't really matter what they've done, what Reagan did back in '87. It was in '87 when he nominated him, so obviously it was still earlier in the year. If this was November, October or September of last year where the president had more than a year left in office, then perhaps this would be a different discussion," Rubio told Wallace. Sure it would. Sure it would. Sure it would. (The preceding was a lame joke at the expense of the sometimes-robotic li'l tyke from Florida.) Howe notes that on Sept. 7, 1956, Justice Sherman Minton announced his intent to retire in a letter to President Dwight D. Eisenhower, serving until Oct. 15 of that year. With the Senate already adjourned, Eisenhower made a recess appointment of William J. Brennan to the high court, and Brennan was formally nominated and confirmed in 1957. In 1968, President Lyndon B. Johnson nominated Supreme Court Justice Abe Fortas to succeed Chief Justice Earl Warren. Fortas, plagued by ethical questions and concerns over liberal decisions by the high court, was the target of a successful bipartisan filibuster, which included objections to filling the seat in an election year. The filibuster inspired Homer Thornberry, whom Johnson nominated to succeed Fortas as an associate justice, to withdraw his name from consideration in October 1968 - because there was no vacancy to fill. In the end, the failure to confirm Fortas as the chief justice did not leave the court short, because Warren remained on the bench. The Constitution doesn't order the president to nominate a Supreme Court justice to fill a vacancy - but isn't it his duty to do so? Isn't it the U.S. Senate's duty, in turn, to hold appropriate hearings and vote on the quality of the nominee? As someone who'd never dream of wearing a plain black robe (Will Farrell's fashion designer Mogatu in first "Zoolander" movie) shrieked, "I feel like I'm taking crazy pills!"

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