So Antonin Scalia, the flabbergastingly partisan Supreme Court justice whose rulings for the last 15 years were less judicial and more a highbrow translation of AM radio, has passed away. No one wished for his death; just his resignation. He was a man who was loved, I’m sure. Still, in light of things like the insane and potentially catastrophic (and, it has to be noted unprecedented) ruling to stay the Clean Power Bill, this is an opportunity to move forward.
But it’s going to get ugly. If you listen closely, you can hear a thousand thinkpieces being written that will argue how it is tyrannical for a lameduck to nominate a Supreme Court justice. Senators are already limbering up for the nomination fight, practicing teary piousness about how the President owes it to the legacy of this great American patriot to nominate a “true Constitutional conservative”. The confluence of an election year, Scalia’s unique role as berobed channeler of the right-wing id, and the unerring antipathy to letting Obama have any normal Presidential prerogative will make this perhaps the ugliest fight in Supreme Court history.
The prerogative is the important thing. Republicans take it as gospel that anytime Obama behaves like a President he is acting like a king. This time will be no different. A quick look back makes it seem like this is the latest in his term a President has had a Supreme Court nomination since LBJ, but that’s due to justices generally not resigning in an election year. This is different. There is nothing that can be done. Barack Obama is still the President. It is 100% within his rights to nominate a justice, and 100% in his rights to nominate a justice
Barack Obama is still the President. It is 100% within his rights to nominate a justice, and 100% in his rights to nominate a justice with whom he is aligned, politically and judicially. This being an election year doesn’t change that.
So when you hear an argument that Obama owes it to Scalia’s memory to appoint a true Constitutional originalist like Scalia (which he only was when it suited him, and which is a bankrupt and idiotic ideology anyway), or that he should do the right thing and postpone having 9 Justices for at least a year, remind them of Article II, section 1.
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
Note it doesn’t say “3 years” or “but during an election year he shouldn’t do anything.” Obama was elected by a large majority for a four-year term, with all the Presidential perogatives that entails. No true Constitutionalist could argue otherwise.