Dear Commons Community,

The media is awash with articles and commentary regarding the new make-up of the US Supreme Court now that there is a vacancy due to the death of Justice Antonin Scalia.  A  main question is whether President Obama can/should nominate a replacement given he is in his last year of office.  Senate Majority Leader Mitch McConnell’s (R-Ky.) claimed that it would be undemocratic to seat an Obama nominee in the president’s last year. Senator Elizabeth Warren (D-Mass.), a legal scholar, explained in a Facebook post that since the American people re-elected Obama in 2012, his power to nominate a replacement has already been approved by the voters.

McConnell “is right that the American people should have a voice in the selection of the next Supreme Court justice,” Warren wrote. “In fact, they did — when President Obama won the 2012 election by five million votes.”

The clause in the constitution empowering the president to name Supreme Court justices — Article II, Section 2 — does not include an exception for when the president only has one year left in office, Warren noted.  Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says “…except when there’s a year left in the term of a Democratic President.”

Of course, McConnell himself has acknowledged as much in the past, since he voted to confirm Supreme Court Justice Anthony Kennedy in 1988, the last year of Reagan’s presidency.  

Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would be nothing short of hypocritical.

Tony