![]() Cruz has a history of making provocative statements about the Supreme Court during his run for the presidency. ![]() Of course, he was already on record in saying that no new justice should be put forth until after the new president is sworn in. Cruz acknowledged during Saturday night’s GOP debate that he was incorrect in saying that there was an eighty-year history of not confirming justices in an election year. Cruz’s commentary is, predictably, more inflammatory, and somewhat more perplexing, coming from a self-described constitutional scholar. The longest recent delay was the most recent appointee, Elena Kagan, taking 87 days, and the shortest being John Roberts, taking only 23. ![]() The longest number of days from nomination to a final vote was 180 days for Robert Bork, Reagan's appointee who was ultimately not confirmed. Slow-playing nominees for an extended period is certainly possible, but it may be tough to pull off. Clearly, that authority resides with the president, no matter who he or she may be, and no matter how much you may disagree with their politics. However, there is no basis, precedential or otherwise, for the Senate leadership to ask a sitting president not to appoint a nominee merely because it is an election year. They can object to the nominee’s politics, any perceived ethical lapses, their judicial philosophy, professional qualifications, a lack of diversity – even just for spite. It is important to remember that the Senate needs to offer no particular rationale for not confirming an appointee. And, ultimately, sitting Chief Justice Earl Warren decided to stay on the bench, resolving the need to elevate Fortas, who was being opposed for ethical breaches and philosophical reasons as well as election year politics. However, Fortas was already serving on the bench, not being nominated to fill a vacancy. Strom Thurmond utilized that argument, among others, to oppose the elevation of Justice Abe Fortas to the role of Chief Justice in 1968, LBJ’s last year in office. Some have pointed to what is known as the “Thurmond Rule” as a rationale for blocking election year appointees. McConnell voted for Kennedy in 1988, his deeply-held disdain for election year nominees being well-disguised at that time. It is also worth noting that like every other Republican Senator, Sen. FDR nominated Frank Murphy in 1940, and Ronald Reagan successfully navigated Anthony Kennedy through the Senate in 1988 (although Kennedy was actually appointed in late 1987). Republican Herbert Hoover nominated Benjamin Cardozo to succeed Oliver Wendell Holmes in 1932. Democrat Woodrow Wilson made two nominations in 1916: Louis Brandeis and John Clark. In 1912, President William Taft (a Republican) nominated and the Senate confirmed Joseph Lamar to the Court. In fact, since that time, there have been a number of election year nominees from both parties. Since 1900, there is not any instance of a president declining to nominate or the senate failing to consider a nominee in a presidential election year simply because of the impending election. The Constitution does not obligate a lame duck or outgoing president to abandon this responsibility during their final weeks or months in office. That authority resides with the president until the day he leaves office. After all, the president is the president, and with that office comes the ability to select Supreme Court nominees. This is a rather self-serving analysis of the circumstances. Therefore, this vacancy should not be filled until we have a new president.” However, his initial comment was "the American people should have a voice in the selection of the next Supreme Court justice. McConnell, in his role as Senate majority leader, will obviously have a great deal of influence over who ultimately replaces Scalia on the bench. Mitch McConnell and Ted Cruz are, in my view, among the worst practitioners of the political opportunism this turn of events offers. One would hope that even 24 hours could have passed before the scrambling for the man’s seat commenced. It isn't only pundits who leapt into the political fray at the announcement of Scalia’s passing - it was presidential candidates of both parties, and leaders of our political houses in Washington. It is a sad commentary on the state of our nation that a person who has served his country so honorably has his untimely death overlooked, in mere moments, in order to focus on the political implications of his demise. That said, he served his country with distinction, and it is with regret that we mark his passing. I can't say I ever cared much for Scalia’s judicial philosophies, at least as he revealed them from his decisions and commentary from the bench. Supreme Court Justice Antonin Scalia died last weekend in Marfa, Texas. ![]()
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