After the retirement of Justice Lewis Powell, President Ronald Reagan nominated Justice Anthony Kennedy on Nov. 30, 1987. Reagan had 14 months left in office and a Democratic Senate, which confirmed Kennedy in early February 1988. President Barack Obama has 11 months left in his term and a Republican-controlled Senate. Justice Kennedy was confirmed even though President Reagan had only three months more left in his lame-duck term than Obama. So does less than three months make that much difference?
Not much thought was given to this history given the rapid reaction to Justice Antonin Scalia’s death. Before his body reached the funeral home, the chorus was saying that Obama need not submit a nominee. Sen. Mitch McConnell and others expressed their determination not to give Obama the opportunity to nominate anyone. It would have been perfectly understandable for McConnell to have said, “Finding someone who is acceptable to both political parties is paramount. It can be done as illustrated by the fact that Justice Scalia was confirmed by the United States Senate unanimously. It will be hard, but we owe it to the nation and the Supreme Court to try.” But that is not what he said.
President ‘shall nominate’
The U.S. Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate (appoint) … Judges of the Supreme Court.” Justice Scalia believed that the U.S. Constitution is not a document that is living and breathing. For conservatives, Scalia is an icon. And so perhaps reflecting on what he may have said about the process of finding a replacement for him is worthwhile. He explained how he looks at the Constitution:
The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. … I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.
Before those who admire Scalia join the stampede to just put off the decision on his replacement for the rest of this Supreme Court term and most if not all of the next term perhaps they should answer the question of how Justice Scalia would rule on the obligation under the Constitution of a president to nominate a justice and the Senate to give its advice and consent? “I would rather do it later” is not in the text of the Constitution.
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