Supreme Court Nominations in Election Years: Part 1

The RNLA mourns the sudden passing of Justice Antonin Scalia, along with the rest of the country.  His passing leaves a vacancy on the Supreme Court, and though Justice Scalia can never truly be replaced, a justice to succeed him will be nominated by the President and confirmed by the Senate.  The justice to succeed Justice Scalia should not be nominated by this President and confirmed by this Senate, however.

In modern American history, a Supreme Court vacancy that arises in an election year is not filled until after the election.  As Shannen Coffin explains:

[T]here simply is no precedent in modern times for filling a vacancy that arises in an election year.  You have to go back to Benjamin Cardozo in 1932 to find a similar circumstance.  Democrats have pointed to the appointment of Anthony M. Kennedy in 1988, but that vacancy arose in June 1987, the summer before the election, and only remained open because Democrats had already blocked one of the most qualified nominees in our history from the Court (Robert Bork).

Ed Whelan notes the importance of this particular vacancy, given Justice Scalia's intellectual force and analytical consistency:

[T]here has never been an election-year confirmation that would so dramatically alter the ideological composition of the Court. . . . Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.

It is only proper for the American people to have an opportunity to exert a measure of control on an institution that is normally not open to the influence of the public will.  The people are not able to select the nominee, but they should be able to select the person who selects the nominee.