Their answer: Not if President Obama is the one who gets to choose the new justice.
In the GOP debate on Saturday, Cruz and Sen. Marco Rubio (R-Fla.) both suggested that the president would be flouting precedent if he insisted on nominating a new justice during his final, lame duck year in office.
“It’s been over 80 years since a lame duck president has appointed a Supreme Court Justice,” Rubio said.
Well, kind of. Ronald Reagan nominated Justice Anthony Kennedy just before his last year in office, in late 1987; Kennedy was confirmed by the Senate in 1988.
There's nothing in the Constitution that limits a president’s prerogatives during his last 12 months in the White House. There’s nothing that even hints at such a principle. If there were, we might have legislation limiting a lame duck president’s power to start a war, let alone nominate a Supreme Court justice. We don’t.
The “precedent” Cruz and Rubio discovered – leaving aside the irony of conservative originalists discovering a new rule – is really one part happenstance (lame duck presidents don’t often get a chance to nominate justices) and one part politics.
The senator-candidates are trying to elevate a straightforward political position – their desire to stop Obama from naming a new justice – into a question of reverence for a hitherto-unnoticed tradition. You can’t blame them for trying.
But it’s still Obama’s prerogative to nominate a new justice, which he says he will do “in due time.” It’s still the Senate’s prerogative to confirm the nomination – or not. It remains the voters’ prerogative to decide which side has the better argument.
And unlike the senators’ newfound lame-duck rule, all those prerogatives are actually in the Constitution.
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