# Obama must be allowed to nominate the next SCOTUS Justice **URL:** \ **Category:** Great Debates\ **Created:** [February 13, 2016, 11:23pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061 "2016-02-13T23:23:33Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [February 16, 2016, 12:03am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/201 "2016-02-16T00:03:36Z")
> [@Quartz](#): > > [I’ve just read](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/13/flashback-senate-democrats-in-1960-pass-resolution-against-election-year-supreme-court-recess-appointments/) that the Senate voted in 1960 that the President should not make recess appointments to the Supreme Court in an election year. It was about recess apointments, not election-year apointments. The Senate is in session now, so it wouldn’t be a recess appointment anyway. And also as the article notes, “…the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment. Not surprisingly, the Republicans objected, insisting that the Court should have a full complement of Justices at all times. Of course, the partisan arguments will be exactly the opposite this time.” ---
**Author:** ![Happy\_Fun\_Ball](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/happy_fun_ball/32/17664_2.png) [@Happy\_Fun\_Ball](https://boards.straightdope.com/u/Happy_Fun_Ball)\ **Post date:** [February 16, 2016, 12:26am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/202 "2016-02-16T00:26:30Z")
> [@doorhinge](#): > > Obama can “nominate” anyone for SCOTUS. A nomination doesn’t mean his nomination will be confirmed. As the current, lame duck President, that’s still his job. I’m sure there are many suggestions for the job coming his way. > > We the People also elected a room full of U.S. Senators. And we expect those duly elected Senators to respond to the needs of their constituents. Some Senators may put the needs of their particular political party over the needs and wants of their constituents but those Senators may soon be looking for honest work if they chose to piss off the voters. When did he become a “lame duck” president? November 7, 2012? ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [February 16, 2016, 12:32am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/203 "2016-02-16T00:32:06Z")
> [@Happy\_Fun\_Ball](#): > > When did he become a “lame duck” president? November 7, 2012? November 8, 2016. **doorhinge** is a time-traveling wizard! . ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [February 16, 2016, 3:01am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/204 "2016-02-16T03:01:22Z")
I’m thinking how we could set a trap, it involves a clock, a bear trap and a working copy of the Excellent Prismatic Spray. ---
**Author:** ![Superdude](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/superdude/32/13450_2.png) [@Superdude](https://boards.straightdope.com/u/Superdude)\ **Post date:** [February 16, 2016, 6:05am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/205 "2016-02-16T06:05:04Z")
> [@adaher](#): > > 538 has an interesting article on how Obama won’t be able to appoint a liberal to replace Scalia: > > [http://fivethirtyeight.com/features/obama-wont-be-able-to-replace-scalia-with-a-justice-as-liberal-as-sotomayor/](http://fivethirtyeight.com/features/obama-wont-be-able-to-replace-scalia-with-a-justice-as-liberal-as-sotomayor/) I’d like to point out just how disingenuous you were with this comment. 538 said, in the link you provided, > [@538](#): > > Obama Won’t Be Able To Replace Scalia With A Justice As Liberal As Sotomayor Somehow, when you linked that cite, you either accidentally or deliberately kept the Sotomayor aspect of the headline from appearing in your post. That certainly changes the conversation some, ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [February 16, 2016, 7:55am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/206 "2016-02-16T07:55:57Z")
“The President shall nominate…” That word “shall” is causing a lot of misunderstanding, as it is commonly interpreted in the imperative sense, as if it something the President is\* expected\* to do. But what you got there is a Constitutional umbra tucked away in a penumbra! The penumbra of “shall” is - “…encouraged to nominate, at his leisure and convenience, whensoever he shall get around to it, so long as it is not the last quarter of his second term…” The umbra part is “…and so long as it does not conflict with the aspirations or designs of whichever political party is most closely aligned with the interests of business, commerce, property, and the preservation of existing institutions…” ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 16, 2016, 8:22am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/207 "2016-02-16T08:22:32Z")
> [@Superdude](#): > > I’d like to point out just how disingenuous you were with this comment. 538 said, in the link you provided, > > Somehow, when you linked that cite, you either accidentally or deliberately kept the Sotomayor aspect of the headline from appearing in your post. That certainly changes the conversation some, hmm, I guess. Really though, as someone who has been folllowing the debate here through a few threads, adaher has been pretty explicit that a good choice for Obama would be someone just to the right of Sodomayor. I have trouble seeing this as some obvious deception on adahar’s part. ---
**Author:** ![rsa](https://avatars.discourse-cdn.com/v4/letter/r/839c29/32.png) [@rsa](https://boards.straightdope.com/u/rsa)\ **Post date:** [February 16, 2016, 8:32am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/208 "2016-02-16T08:32:24Z")
> [@davida03801](#): > > The President has the right to nominate who he pleases. The Senate has the right to delay, deny or approve the nominee to SCOTUS. After all that is done the voters have the right to vote in or out who they please based upon whatever outcome there is. > > Actually the Constitution is working as intended, and very well. IMHO I agree _except_ that the constitution is working as intended. I’ve just read the entire thread and Cruz was mentioned as tweeting within a half hour about filibustering, but nothing (unless I missed it) about Mitch McConnell, Senate Majority leader, stating that there would not even be a confirmation hearing hearing and no one Obama nominated would be considered at all. This was within an hour of the report about Scalia’s death coming out while Democrats were expressing their condolences and regrets, including Hillary, Bernie and Charles Schumer. It’s interesting that there were NO confirmation hearings for SCOTUS nominees until the Democratic president Woodrow Wilson had the temerity to nominate a Jew, Louis Brandeis. ---
**Author:** ![rsa](https://avatars.discourse-cdn.com/v4/letter/r/839c29/32.png) [@rsa](https://boards.straightdope.com/u/rsa)\ **Post date:** [February 16, 2016, 8:42am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/209 "2016-02-16T08:42:13Z")
Forgot to mention that pre-civil war it was usually a matter of days or a few weeks for a nominee to be confirmed. Also, the first time there was a vacant SC seat for any length of time was during the civil war. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [February 16, 2016, 9:58am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/210 "2016-02-16T09:58:36Z")
Republicans are spreading the canard that there is a precedent not to appoint Supreme Court Justices in election years. I herewith demonstrate that that is a blatant lie. [ul][li] The last Justice to die or retire during an election year was Sherman Minton. He retired October 15, 1956. Eisenhower immediately appointed Walter J. Brennan. Wikipedia shows Brennan serving from October 15, 1956 (was this a recess appointment?) although he wasn’t formally confirmed until 1957.[/li][li] Oliver Wendell Holmes Jr. retired due to extreme old age in January 1932. Hoover nominated Benjamin N. Cardozo who was confirmed in March.[/li][li] _ **From 1917 until 2016, Holmes, Minton and Scalia are the only Justices who happened to die or retire during an election year.** _[/li][li] Joseph Rucker Lamar died in January 1916. Wilson’s nomination of Louis Brandeis to replace him was extremely controversial, perhaps the most controversial appointment until then. Yet the Senate voted 47-22 to confirm him on June 1, 1916.[/li][li] Charles Evans Hughes resigned as Justice in June 1916 so that he could run for President against Wilson. Wilson submitted the name John Hessin Clarke to the Senate in July. Clarke was confirmed unanimously ten days later.[/li][li] Et cetera, et cetera.[/li][/ul] TL;DR: If a Republican says anything, save time and just assume it’s a lie. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 16, 2016, 2:46pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/211 "2016-02-16T14:46:40Z")
> [@septimus](#): > > Republicans are spreading the canard that there is a precedent not to appoint Supreme Court Justices in election years. I herewith demonstrate that that is a blatant lie. > > [ul][li] The last Justice to die or retire during an election year was Sherman Minton. He retired October 15, 1956. Eisenhower immediately appointed Walter J. Brennan. Wikipedia shows Brennan serving from October 15, 1956 (was this a recess appointment?) although he wasn’t formally confirmed until 1957.[/li]…[/ul] Yes, this was a recess appointment. Brennan was subsequently confirmed after Eisenhower’s reelection and the seating of any new Senators. Which almost plays into the Republican’s argument that the voters should have a say and we should wait until after the election. When they get the details right, what the Republicans have been saying is that no Supreme Court justice has been nominated in an election year in the last 80 years. That is true. Whether it is meaningful likely depends upon the observer’s political leanings, and is likely subject to change should the political parties be reversed. Your other examples are prior to the 80 year limit which was doubtlessly cherry-picked in an effort to bolster the Republican’s argument. But it has been noted that in earlier times travel was potentially quite lengthy for some Senators and Representatives to reach the capital. Senators might have been more inclined to take care of such pending business which arose while they were in session and not end up returning to the capital later. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [February 16, 2016, 3:03pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/212 "2016-02-16T15:03:37Z")
oops, wrong thread. ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [February 16, 2016, 3:40pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/213 "2016-02-16T15:40:28Z")
Honestly, I’m now thinking that there is a greater than 75% chance that Obama doesn’t end up getting a justice confirmed. My intelligent conservative friends (non frothing, professional and upstanding members of society!) have bought hook, line and sinker the idea that the precedent is, and always has been, that presidents do not nominate a supreme court justice in an election year. No amount of facts can change their minds that this is how it is, and how it always has been, and that Obama is trying to fundamentally change this longstanding tradition. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [February 16, 2016, 3:52pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/214 "2016-02-16T15:52:48Z")
> [@Colibri](#): > > The utter hypocrisy and flagrant lying on this is shown by the fact that [Grassley himself was one of the 97 votes to confirm Reagan appointee Anthony Kennedy in Reagan’s last year in 1988.](http://thehill.com/regulation/court-battles/269398-senate-judiciary-chair-wait-until-election-is-over-to-fill-scalias) McConnell was one of those voters, as well. [Cite](http://www.huffingtonpost.com/entry/mitch-mcconnell-supreme-court-antonin-scalia_us_56bfcde2e4b08ffac1259285). John Oliver pointed out the hypocrisy [pretty thoroughly](http://www.thedailybeast.com/articles/2016/02/14/john-oliver-slams-republicans-for-blocking-antonin-scalia-s-scotus-replacement.html). ---
**Author:** ![Clu-Me-In](https://avatars.discourse-cdn.com/v4/letter/c/dfb087/32.png) [@Clu-Me-In](https://boards.straightdope.com/u/Clu-Me-In)\ **Post date:** [February 16, 2016, 3:57pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/215 "2016-02-16T15:57:23Z")
> [@elucidator](#): > > “The President shall nominate…” > > That word “shall” is causing a lot of misunderstanding, as it is commonly interpreted in the imperative sense, as if it something the President is\* expected\* to do. But what you got there is a Constitutional umbra tucked away in a penumbra! > > The penumbra of “shall” is - “…encouraged to nominate, at his leisure and convenience, whensoever he shall get around to it, so long as it is not the last quarter of his second term…” > > The umbra part is “…and so long as it does not conflict with the aspirations or designs of whichever political party is most closely aligned with the interests of business, commerce, property, and the preservation of existing institutions…” I disagree with this interpretation of the Constitution. If we agree with you, it then means that wherever the word “shall” appears in the Constitution, we must apply your interpretation and we cannot. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 16, 2016, 3:58pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/216 "2016-02-16T15:58:07Z")
> [@Iggy](#): > > When they get the details right, what the Republicans have been saying is that no Supreme Court justice has been nominated in an election year in the last 80 years. That is true. Whether it is meaningful likely depends upon the observer’s political leanings, and is likely subject to change should the political parties be reversed. Yep. I don’t generally like “what would the other party do if…” scenarios, but it’s hard to imagine the Democrats just going along with an appointment made by GWB in his last year in office had RBG died then. The parameters are pretty much equally reversed, as the Dems had the House and the Senate in 2008. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 16, 2016, 4:02pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/217 "2016-02-16T16:02:48Z")
> [@John\_Mace](#): > > Yep. I don’t generally like “what would the other party do if…” scenarios, but it’s hard to imagine the Democrats just going along with an appointment made by GWB in his last year in office had RBG died then. I agree. The swing vote on the Supreme Court is probably more important than control of the Senate for four years or even control of the Presidency for four years. It is simply impossible that either party would not fight for it if given the slenderest of reeds to do so–and would do so even at their own political peril. Of course, that doesn’t answer the question of who is _right_ to do so. The right answer is probably that Supreme Court appointments ought not be so partisan. But that’s the world we live in, and it roots of it go back way further than Bork. The only solution is probably very gradual de-escalation. But it requires a Senate and Senate leader who are interested in such de-escalation. I doubt Mitch McConnell is the man for that. ---
**Author:** ![Bridget\_Burke](https://avatars.discourse-cdn.com/v4/letter/b/7cd45c/32.png) [@Bridget\_Burke](https://boards.straightdope.com/u/Bridget_Burke)\ **Post date:** [February 16, 2016, 4:17pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/218 "2016-02-16T16:17:21Z")
> [@John\_Mace](#): > > Yep. I don’t generally like “what would the other party do if…” scenarios, but it’s hard to imagine the Democrats just going along with an appointment made by GWB in his last year in office had RBG died then. The parameters are pretty much equally reversed, as the Dems had the House and the Senate in 2008. Not “going along” with an appointment is different from announcing that your party will consider no appointments at all. Before the Scalia’s body was even cold. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 16, 2016, 4:22pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/219 "2016-02-16T16:22:02Z")
> [@John\_Mace](#): > > Yep. I don’t generally like “what would the other party do if…” scenarios, but it’s hard to imagine the Democrats just going along with an appointment made by GWB in his last year in office had RBG died then. The parameters are pretty much equally reversed, as the Dems had the House and the Senate in 2008. Look, if Republicans just played hardball, said, “We hate Obama and think he’s a nasty-ass poopyhead and we’re going to vote down anyone he nominates unless that person is to the right of Clarence Thomas,” that’d be obnoxious hardball. It’s the absurd claims about tradition that get me. A tradition that’s never been tested **is not a tradition**. It’s MORE reasonable to state that the Senate has never failed to vote on a SC nominee during an election year in the past 100 years. That tradition has at least been tested. It’s equally reasonable to say that the Senate has a tradition of never voting in favor of a SC candidate of South Asian descent, and that they’re therefore not going to hold such a vote. Well, yes–but such a candidate hasn’t been nominated before. It’s the dishonesty, and the ineptitude of the dishonesty, that gets me. ---
**Author:** ![Drunky\_Smurf](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/drunky_smurf/32/449_2.png) [@Drunky\_Smurf](https://boards.straightdope.com/u/Drunky_Smurf)\ **Post date:** [February 16, 2016, 4:30pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/220 "2016-02-16T16:30:35Z")
Obama must not be allowed to nominate the next Justice. He’s already trying to circumvent the Constitution. He’ll just try to put in a “Yes Man” who will be willing to let him and the Dems do all kinds of unconstitutional and illegal acts. [Previous page](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061.md?page=10) [Next page](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061.md?page=12)