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Editorial: Obama’s duties include court nominees


Last modified: Monday, February 22, 2016
*Archive Article*
Barack Obama’s eight years or two terms as the elected head of the United States comes to an official end on Jan. 20, 2017, the day that a new president is sworn in and takes up residency in the White House.

Until that day, however, roughly 11 months from now, Obama is responsible for carrying out the duties of the presidency of the United States, including filling a vacancy on the United States Supreme Court following the death of Justice Antonin Scalia. To suggest otherwise is to know little about the office and our nation’s history. In this case, opposition to the president fulfilling this responsibility is blatantly political in nature, an extension of partisanship and polarized governance that holds a grip on Washington, D.C.

Let the record show that past presidents in their final year of office have faced similar vacancies on the nation’s highest court and have put forward nominees that the Senate not only considered but proceeded with a vote — up or down.

Justice Anthony Kennedy, for example, was nominated by President Ronald Reagan in 1987 and confirmed by the Senate, then controlled by the Democrats in 1988, the last year of Reagan’s term in office. President Lyndon Johnson, who did not run for re-election, nominated Associate Justice Abe Fortas as chief justice and Homer Thornberry to fill Fortas’ vacancy. The Senate turned down Fortas’ nomination, leading to Thornberry withdrawing his name from consideration.

Other presidents in an election year, ones who went on to win re-election, have also put forth nominees for court vacancies.

Claims by Republicans and others that Obama would be ignoring historical precedence — Marco Rubio, Republican senator and presidential hopeful, said “it has been over 80 years since a lame-duck president has appointed a Supreme Court justice” — simply aren’t true.

And Rubio’s comment brings up this idea that a president in his last year is a lame duck, someone unlikely to get Congress to go along with his legislative desires. Historically, a lame duck status for a president doesn’t occur until after a successor is elected. But we’re not surprised that Obama is seen as a lame duck president given the Republican-controlled Congress has already announced it isn’t interested in enacting any legislation coming out of the White House.

But the U.S. president isn’t like some sports figure getting a victory lap after they have announced their retirement. The president is still responsible for executing the duties of his office, including those spelled out in the Constitution. This includes, “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court.” Nowhere in this document is there wording that exclude one’s final year in office.

We could go into what leaving the seat open means — depriving the court of a voice on matters facing the nation. A four-four tie doesn’t set precedent, rather it leaves the lower court ruling to stand. But this doesn’t seem to matter to those calling for the president to hold off on a nominee.

That cannot be the way this country is run. The president should bring forth a nominee in the 300-plus days left in his term and the Senate should hold in a confirmation hearing on a nominee and then a vote. That’s what the Constitution and nation calls for. Anything else is dereliction of duty to one’s elected office — one that Obama won twice.