The Archregimancy wrote:One other detail here...
If you look at the table a few posts back, there's at least one case of a Supreme Court justice being nominated and approved by a president after that president had lost one of the most controversial and bitterly contested elections in US history, but before the next president was inaugurated*.
John Marshall was nominated by the outgoing John Adams in January 1801 (in an era when presidential inaugurations were in March), after Adams had been crushed by Jefferson in the previous year's election.
Now, a precedent from January 1801 may not seem immediately binding on the process in 2016, and the Supreme Court is a very different beast now than it was then (in no small part thanks to John Marshall).
But let's consider this from a conservative strict constitutionalist position. Adams, Jefferson, and the various members of Congress involved presumably knew a thing or two about the intent of the framers of the US Constitution. Now, the nomination of Marshall wasn't wholly uncontroversial, but the controversy was over the Midnight Judges Act, not the president's right to appoint a Supreme Court justice - and a Chief Justice at that - even after he had been decisively rejected by the electorate. There was some brief prevarication over whether Adams might choose someone else, but no one disputed his right to make the appointment; Marshall was confirmed a week after his nomination. This despite the fact that the 'people' had roundly rejected the person making the appointment.
Clearly there was no intent on the part of the framers of the Constitution, many of whom were still highly active in politics at this point, that a lame duck president - even a lame duck president who had already lost an election - shouldn't have the right to nominate a candidate to a vacancy in the Supreme Court.
Refusing to even hold hearings on the basis that the 'people' should be given a say in a Supreme Court appointment in an electoral year is therefore a clear violation of the intent of the Constitution's framers.
And for what it's worth, most people presumably consider John Marshall to have been an outstandingly successful appointment.
* though the identity of that successor was yet to be determined due to the flaw in the constitution that allowed for the infamous Electoral College tie between Jefferson and Burr
Alright, I'll withdraw the point about precedent.
However, I never made the point that the President has no right to nominate a justice. I simply made the point that the Senate has no obligation or duty to confirm or even consider his nominees, and that this year they should wait until after the election to consider any nominees. This is a turning point in America and the people now have the chance to decide which direction they want to go.
