Of COURSE President Obama should nominate Scalia replacement. That’s his job.


First, I’m sorry to hear of the death of Supreme Court Justice Antonin Scalia. I’d be sorry to hear of any man’s death, but I actually kind of liked the much-criticized jurist, most of the time.

Now, to the instantaneous controversy that is always there ready to erupt and wash away any normal, human feelings we might have at such a moment…

I’ll be brief:

  • There is a vacancy on the court — right now, not next year.
  • It is the duty of the president of the United States to nominate someone to fill such a vacancy (and the Senate’s duty to consider that nomination, and vote on it).
  • Barack Obama is the president of the United States. And he will be for much longer than it ought to take to nominate and confirm a suitable justice.

There’s really nothing else to say. The president has announced his intention to do his duty. As he should.

No, I’m not crazy about having another justice who thinks Roe v. Wade shouldn’t be touched or amended. But I’m also opposed to nominating and confirming justices based on whether I somehow sense that they agree with me on this or that issue. I’m opposed to that for the same reason I’m opposed to Roe: I believe in a government of laws and not of men (and Roe flies in the face of that by allowing a single, highly interested individual to make a unilateral, irreversible decision to take human life without due process).

Republicans who don’t like the fact that Barack Obama is president should get busy electing one of their own. (Step One: Figure out how to deal with your Trump problem.)

But on the Scalia vacancy, Mr. Obama is president. Consider and vote on his nominee promptly.

34 thoughts on “Of COURSE President Obama should nominate Scalia replacement. That’s his job.

  1. Phillip

    There’ll be some behind-the-scenes negotiations, during which it will be made clear to Obama that only selecting from a VERY short list of center-right judges pre-approved by McConnell et al will result in his choice being approved during his term. In turn, Obama and his advisers will be scouring lists to find somebody center-left, someone that could be considered reasonable for a Democratic president to select, and in essence daring Congress to reject someone on purely partisan grounds. Obama’s selection will not be on the most liberal end of the spectrum by any means, that’s my prediction, but liberal enough to be predictably blocked by the Senate.

    1. Harry Harris

      I think you are correct, but whoever he nominates off his moderate list will be subjected to a barrage of characterization as left-wing, judicial activist, dodgy characters. He won’t likely nominate anyone with a whiff of sympathy for Citizens United.

    1. Mark Stewart

      The GOP does not have that option, Bud.

      They can posture that position, but we have a Constitution. If we aren’t going to uphold that, then we all have a problem. He died six months to soon for politics to trump both reason and duty.

  2. Burl Burlingame

    Can the obstructionists and do-nothings in the Senate be embarrassed enough in an election year into actually doing THEIR duty? Remains to be seen.

  3. Bryan Caskey

    Damn. Horrible to lose a great jurist. Brilliant man, and really funny. Don’t see that combination too often.

    By the way, as historical context for the upcoming nomination, Scalia was confirmed by the Senate 98-0 back in 1986.

  4. Phillip

    Of course, Senate Republicans will have to hope that they keep a majority after the fall election, as they are going to have to try to keep the seat unfilled not for one year, but for 5 years, considering that they are heading for an Electoral College massacre of Alf Landon-like proportions, especially if they nominate Trump.

  5. Doug Ross

    There are people who are comfortable when 50% of the country doesn’t like the other party but are bothered when 60% of the people doesn’t like either party. 30% for Trump and 30% for Sanders is a function of how terrible our current government is.

      1. Doug Ross

        It should make you feel like we may (finally) be reaching a tipping point in this country where we decide to do one thing or another instead of both. We can’t have the strongest military (by a factor of X) AND provide the best healthcare for our citizens. We can’t keep exporting jobs outside the country and provide the best environment for people to work here. We can’t give illegals benefits while making it harder for legal immigrants to remain in the country. We can’t spend what we don’t have. We can’t tax our way to excellence.

          1. Doug Ross

            No ha funcionado sin embargo , ¿por qué habríamos de esperar que funcione con los mismos idiotas en la oficina ?

  6. Scout

    It is completely astonishing to me that people, who so often taut doing things exactly and only by the constitution, can put forth any argument that the President should not nominate another justice and think they should be received credibly. None of the arguments I’ve heard them make make any sense to me. The nomination of supreme court justices by the President is unequivocally constitutional. Trying to justify blatant self interest with a straight face when it stands in contradiction to everything you have previously said you supported takes some gall.

  7. Bob Amundson

    What would Justice Scalia think of members of the Legislative Branch telling the President to not bother nominating a Supreme Court Judge, which POTUS SHALL do according to Article 2 of the Constitution?

    1. Bryan Caskey

      He and St. Peter are probably laughing their butts off at the whole thing.

      Seriously, though, his Casey dissent is what he would say about it.

      1. Bob Amundson

        “[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”

        RIP, Justice Scalia. A brilliant jurist, great writer, wonderful man/husband/father/friend.

  8. Doug Ross

    Obama should nominate someone… I’d say he has the right to do that up until the first week of November.

    I just wish he would make his nomination without looking at the race or gender of the justice. That’s discrimination. Pick the best judge, not the best [insert politically motivated demographic category here].

    The names I’ve seen floated so far look like intentional slaps in the Republican Party’s face. Eric Holder? ERIC HOLDER??

    1. Bob Amundson

      I would be surprised, and disappointed, if POTUS nominated Mr. Holder. Other names have been mentioned, Appellate Court Judges recently confirmed by the Senate unanimously.

  9. Doug Ross

    During the debate on Saturday, the standard questions about illegal immigrants and what to do about them came up again. Every time I hear the Marco Rubio-Jeb Bush answer (Pay a fine, pay back taxes, etc.), I am left with the same question: “If they DON’T pay the fine or back taxes, then what? Can they THEN be deported? Can we THEN stop all public assistance to them?” I never hear that side of it. Isn’t it fairly obvious that most of the 11 million illegals won’t come forward? Unless there is a real penalty for not doing so, why would they pay for what they already have?

  10. Phillip

    On one of the Sunday morning news shows, I heard Rubio say that a president “who will never have to face the electorate again” should not get to make a SCOTUS pick. OK, Marco, suppose you win this November (heaven forbid) and get re-elected in 2020. Does that mean that, should a vacancy unexpectedly occur on Nov. 15, 2020, that you should not submit a nomination and that the seat should go unfilled for over four years from that point? (Since you would “never have to face the electorate again”)

    1. Doug Ross

      I’d like all the Republicans who say Obama shouldn’t put a name up to specify exactly what date would have been okay so the same standard can be applied in the future. Is it January 1? November of last year? 2008?

  11. Bryan Caskey

    The argument that the Republican controlled Senate is advancing is once again proof that the GOP is “The Stupid Party”. I’ll explain.

    First, the idea that Obama should not nominate a candidate for SCOTUS because he’s near the end of his Presidential term is an argument solely based on timing. So what about the timing? The whole point is not to allow a liberal President to shove a liberal justice into the seat formerly occupied by the engine of the Originalist movement. If Hillary is elected, then this timing argument goes away completely, assuming the Senate remains GOP. What is McConnell gonna do then? Just keep stalling? He can’t, because his entire argument is no longer valid.

    I normally don’t consider myself to be a great politician, but the whole idea of just coming out and saying “No Hearings, No Votes, No Way” is impolitic. I mean, if I were the Senate Majority Leader, I’d say something like:

    I am truly saddened by the passing of Justice Scalia. He was a tireless champion of a faithful Originalist interpretation of the Constitution for over a quarter century, and a jurist of his caliber can never be truly replaced. However, Justice Scalia would remind us that we are a nation of laws, and not men, and that we should take up the task of finding a jurist who can pick up his torch and carry on his great work and tradition.

    To that end, the Senate calls on President Obama in the spirit of bi-partisanship and common ground to nominate a jurist whose record demonstrates an unwavering commitment to carrying on the legacy of Justice Scalia. Such a nominee will be guaranteed a swift confirmation process. While the Senate respects the President’s prerogative to nominate any individual he may choose, to the extent that the President does not take the advice of the Senate on this important matter, the Senate can make no such guarantees of consent.

    But noooooo. We have to be the party of stupid.

    1. Mark Stewart

      McConnell didn’t speak out of political calculus, but out of political party inter-nacine machinations. The GOP has reduced itself to attacking itself; they are afraid of the loonies on their flank. Until there is a consensus to marginalize the wild things, people like Cruz will continue to assert outsized influence on events.

      Yours is a better approach, but it still results in Cruz pulling the pin on the grenade you are holding.

      The worst thing about McConnell’s statement was not that it was adversarial, but that it was a capitulation.

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