SCOTUS Justice Scalia's Former Seat

With the death of Supreme Court Justice Scalia his former seat on the Court is now vacant.  Even though Justice Scalia died on Saturday by Saturday evening the Republican politicians had already stated that President Obama should be blocked from filling the vacancy.

Most of the Republican presidential candidates came out with some sort of weird new tradition that the President hasn't made a nomination to the Court in his last year in office in eighty years.  That is demonstrably false.  (It's a lie.) Scotusblog was good enough to compile a list of election year SCOTUS nominations made by presidents during election years over the last 100 years.  The list includes five cases between 1912 and 1987 where the nominee was confirmed by the Senate and then another two cases one in 1956 where President Eisenhower made a recess appointment that was confirmed by the Senate the following year and another in 1968 when President Johnson attempted to fill a vacancy, but it was blocked by the Senate.  The most recent case was in 1987 when President Reagan nominated Anthony Kennedy to the Court and the Senate confirmed him in 1988.  The New York Times has also published a graph showing all the Supreme Court nominations going back to President Washington which shows when in a term the nomination was made.  

Senator Mitch McConnell has commented that the American people should have a voice in the nomination via the Presidential election campaign currently underway.  As shown in the previous paragraph this would be an unusual situation.  Also let me remind you that the American people have had a say in this nomination since in 2008 there was a Presidential election in which Barack Obama was elected president and then another in 2012 where he was re-elected to the same office.  

Article II, Section 2, of the US Constitution spells out the ability of the President to make nominations to the Supreme Court:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

"He shall have power" not should, but shall.  That means he does.   It also states "with the advice and consent of the Senate."  So there you have it.  President Obama was elected twice to the office.  He can exercise the powers provided by the US Constitution.  He has the power to nominate justices with the advice and consent of the Senate.  There is no tradition of Presidents not nominating someone to fill the vacancy during an election year and anyone who says otherwise is simply playing games.

I'm going to lay it out there blankly.  Anyone who claims to support the Constitution and who then tries to say that the President shouldn't or can't nominate someone to fill the vacancy on the Supreme Court doesn't actually support the Constitution.  The Constitution is pretty clear on the power of the President to nominate.  It doesn't have a secret clause that says "except in an election year or the last year in office."  It's pretty simple.  Either you believe in the Constitution or you don't.  If you say you don't, but then in practice you say it shouldn't apply to a case, then you are a hypocrite or a panderer and in either case you've disqualified yourself to the Office of the President of the United States of America.