In Election Years, a History of Confirming Court Nominees

Related Link The conservative response to this article in National Review

“The American people should have a voice in the selection of their next Supreme Court justice,” Senator Mitch McConnell of Kentucky, the Republican majority leader, announced after news of Justice Antonin Scalia’s death. “Therefore, this vacancy should not be filled until we have a new president.” Many of the Republican presidential contenders have heartily endorsed this argument.

Contrary to those claims, however, President Obama has constitutional and historical precedent on his side and should announce a nominee.

Article II of the Constitution directs the president to nominate and, “by and with the Advice and Consent of the Senate,” appoint judges of the Supreme Court. (“He shall,” it says.) Nothing in the Constitution stipulates that this power does not apply in an election year.

In fact, history supports Mr. Obama. On 13 occasions, a vacancy on the nation’s highest court has occurred — through death, retirement or resignation — during a presidential election year. This does not include the most recent and frequently cited example, Justice Anthony Kennedy, who was nominated by Ronald Reagan in November 1987 to fill a vacancy and won confirmation from a Democratic-controlled Senate in February 1988.

In 11 of these instances, the Senate took action on the president’s nomination. In all five cases in which a vacancy occurred during the first quarter of the year the president successfully nominated a replacement. ...