By Mark C. Poloncarz

The death of U.S. Supreme Court Justice Antonin Scalia has taken an already topsy-turvy 2016 election season and added the additional element of putting the balance of the highest court in our land in play. For nearly three decades, Scalia was the legal lion of the conservative moment, and the darling of every member of the Federalist Society. Except in the area of cases relating to the First Amendment, he never strayed far from his rock-solid conservative principles and exhibited a writing style that could be described as a “take no prisoners” mentality. As such, an entire generation of conservative lawyers and followers of the court view Scalia as the model of what a Supreme Court Justice should be.

Almost immediately after his death members of the Republican Party called for President Barack Obama to not nominate an individual to replace Scalia, and if he did, many said they would refuse to entertain the nomination because he is in his last year in office. While it was not surprising in an election year to hear Senators Ted Cruz and Marco Rubio state such a position on the campaign trail, it was eye-opening to hear the leader of the Senate Mitch McConnell say, less than an hour after Scalia’s death was confirmed, “[t]he American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Regardless of whether it was a case of the Republican presidential candidates’ tail wagging the dog, a line in the sand had been drawn over one of the most basic powers any president has: to name nominees to fill vacancies to any federal court, including the Supreme Court.

Notwithstanding McConnell’s apparent disrespect for the nearly 66 million Americans who voted for President Obama in 2012, there is simply no legal basis to prevent a president from nominating a replacement to the Supreme Court. Article II, Section 2, Sub-section 2 of the Constitution states the president “shall nominate, and by the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme court and all other officers of the United States… .” Contrary to the statements of some commentators, there is no Constitutional limitation to the power of the president to nominate and appoint a Supreme Court justice other than the nomination is subject to the “advice and consent of the Senate.”

While a legal limitation might not exist, it has certainly not stopped some from still saying a de-facto agreement exists whereby the Senate will not entertain a presidential nomination in the final year of the president’s term. Those saying so point to the allegedly eighty year recent history of the Senate refusing to consider presidential appointments to the Supreme Court. However, when you examine the true historical narrative of presidential appointments you find that the opposite is the case.

The most recent example was President Ronald Reagan’s appointment of Anthony Kennedy to the Supreme Court. Kennedy was nominated by Reagan during the president’s last year in office, on November 11, 1987 in fact, and after due consideration he was confirmed by a Democratically controlled Senate on February 3, 1988 by a vote of 97 to 0. While Kennedy was Reagan’s third choice to fill the seat of retiring Justice Lewis Powell, no one called on President Reagan to not submit a nominee because it happened to be his final year in office nor was there a call to delay the vote. President Reagan nominated Kennedy and the Senate held hearings to review the nomination and approved the nomination less than ninety days after Kennedy’s name was submitted for consideration. The president and the Senate both fulfilled their Constitutional obligations.

Some have pointed to the example of President Lyndon Baines Johnson attempted appointment of Supreme Court Justice Abe Fortas to the open Chief Justice position during LBJ’s last year in office and its subsequent failure as evidence that the Senate will refuse to entertain a last year nomination. The true facts of that appointment show that the Senate Judiciary Committee did hold hearings to consider Fortas’ nomination. However, Fortas could not survive a full vote of the democratically controlled Senate when conservative southern Democrats who objected to Fortas’ liberal holdings joined Republicans to prevent a final vote from being held by the full Senate on his nomination. Fortas then asked President Johnson to pull his nomination. While Fortas’ nomination failed, it did not fail because the Senate refused to consider the nomination. The Senate fulfilled its Constitutional duty, even if not to President Johnson’s liking.

Those are the only two occasions in which a president nominated a Supreme Court Justice during his final year in office during the last eighty years. However, if you look further back in our country’s history you will find plenty of examples of presidents submitting for the Senate’s consideration Supreme Court nominations during the last year of a president’s term. Dwight D. Eisenhower made a recess appointment of Justice William Brennan to the court during 1956, the year he ran for re-election. In 1940, Franklin Delano Roosevelt nominated Frank Murphy to the Court. In 1932, Herbert Hoover nominated Benjamin Cardozo while running for re-election, and in 1916 Woodrow Wilson nominated John Clarke and Louis Brandeis during his first term’s final year. In each of the above nominations the Senate performed its Constitutional duty by reviewing and approving the appointments.

If we go back even further, we will find other circumstances of presidents nominating justices to the Supreme Court even after their successors had been elected president but before they took office, including one of the most important nominations in our country’s history. On January 20, 1802, following his defeat to Thomas Jefferson, and less than two months before his tenure ended, our second President John Adams nominated John Marshall to be the Chief Justice of the Supreme Court after Adams’ original choice, former Chief Justice John Jay, turned down the appointment. Less than ten days later, Marshall was confirmed by the Senate.

It was a fortuitous appointment, because Chief Justice John Marshall is the author of the Supreme Court’s opinion in Marbury v. Madison, the case which established the principle of judicial review. If President Adams had not nominated and the Senate had not confirmed Marshall, our country might be completely different today. The concept of judicial review provides a court the power to rule a law unconstitutional. There is no provision in the Constitution establishing the court’s power to declare a law unconstitutional. Yet the principle of judicial review is universally accepted and is the foundation for all constitutional decisions that followed Marbury, and a principle that Justice Scalia understood was the basis for the court’s power.

The president has announced he will nominate an individual to fill Justice Scalia’s seat. The Constitution and our country’s history are clear on the subject: the president has the right to make a nomination no matter how many months, weeks, or days remain in that president’s term and the Senate must consider. Failure by the Senate to consider the president’s appointee is an abrogation of the Senate’s responsibilities. Our nation is built under the premise of the rule of law. Senators who attempt to delay or refuse to consider a nomination are doing nothing more than trying to rewrite the Constitution.

Nearly 66 million Americans voted for Barack Obama in 2012, and when he was sworn in on January 20, 2013 he took an oath to protect and defend the Constitution of the United States. While many in the Republican Party might not like it, President Obama’s term expires on January 20, 2017, and until his term expires he has the right to nominate and appoint Supreme Court justices. It is time for Senate Republicans to stop politicizing the issue and get down to what they are constitutionally required to do: act on the president’s nomination. Anything short of that is an abdication of their duty.

Mark C. Poloncarz is an attorney and the Erie County (New York) Executive

Copyright Mark C. Poloncarz, 2016