Yes, Obama should nominate a Supreme Court candidate

Clarke Fox , Staff Writer

U.S. Supreme Court Justice Antonin Scalia died unexpectedly on Feb. 13 while on vacation in Texas. Scalia was a pioneer of conservative jurisprudence, appointed by Mr. Conservative himself, Ronald Reagan, in 1986. A friend to the right and a bane to the left, Scalia will be remembered for his unwavering commitment to constitutional originalism, a legal philosophy that justices ought to be guided by the Constitution as it was originally written, and nothing else. Personally, I’d have better luck finding the Loch Ness Monster than I would a Scalia decision that I agreed with. Still, it is important to recognize the judicial giant that he was. His commitment to originalism has given new life to the jurisprudential philosophy, inspiring waves of justices and legal scholars to adopt the jurisprudential method. His amusingly caustic dissents, such as his referral to the majority decision in King v. Burwell, the most recent challenge to the Affordable Care Act (ACA), as “interpretive jiggery-pokery” and “pure applesauce,” will memorialize him as one of the most spirited justices to preside over the Supreme Court.

For a brief moment (emphasis on brief), the separate stratospheres that Democrats and Republicans have come to occupy converged to mourn the loss of a Supreme Court justice who dedicated more than a third of his life to the Supreme Court. Almost immediately after Scalia’s death, the political magnitude of his loss and the vacancy he left behind hijacked most genuine conversation attempting to honor the late Supreme Court justice irrespective of political implication. On the night of Scalia’s death, Republican presidential hopefuls gathered in South Carolina for the CBS Republican debate ahead of the state’s upcoming primary. Before the screaming and interrupting that we have come to expect from the Republican debates began, the candidates unanimously agreed that President Barack Obama should not nominate a Supreme Court candidate during his remaining 11 months in office. Republican members of the Senate, led by Senate Majority Leader Mitch McConnell (R-Ky.), quickly echoed the calls of the party’s presidential candidates and pledged to block any Obama nomination. Republican presidential hopeful Senator Ted Cruz, coming off strong performances in Iowa and New Hampshire, promised to filibuster any Obama nomination, referring to him as a “lame-duck president.”

Obama is not a lame-duck president, contrary to what Cruz and his Republican colleagues would have you believe. Obama does not become a lame-duck president until after the votes are cast in the November general election. Despite the obfuscating attempts of Republicans to grow sentiment against an Obama nomination, he is constitutionally bound to nominate a replacement to fill Scalia’s chair. Article II, Section 2 of the U.S. Constitution specifically states that the president “shall nominate … by and with the advice and consent of the Senate … judges of the Supreme Court.” If Obama were to heed the advice of Republican presidential candidates and Senate Republicans that he should capitulate the nominating duties to his presidential successor, he would be violating his constitutional obligation.

The argument Republicans have chosen is rather ironic. By placing partisan politics ahead of their constitutional right to advise the president and consider Supreme Court justices, they are disgracing Scalia’s legal philosophy of originalism. To be clear, I am not saying that the Senate should or will appoint whomever Obama nominates. In fact, if I were a betting man, I would bet that Scalia’s seat would gather cobwebs until spring or summer of next year.

The idea that Senate Republicans would unequivocally block any Obama nominee without so much as reviewing his or her qualifications underscores everything that is wrong with our current brand of American democracy. To borrow a familiar quip from the late Scalia, the obstructionist Republican argument that Obama ought to wait and yield the nominating powers to the next president is “pure applesauce.”

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