Replacing Justice Scalia: It’s not (technically) unprecedented for a president to replace a Supreme Court justice in the last year of his presidency

Supreme Court Justice Antonin Scalia died today at the age of 79. It’s a presidential election year. Barack Obama is in his last year of office. The Senate is controlled by a Republican majority that has deliberately frustrated the president’s agenda at every turn. With the Supreme Court divided so closely on so many issues, with a 5-4 split up to this point in favor of the conservative majority, the stakes for President Obama and the future court are enormous. This might possibly be the most epic political battle of Obama’s presidency, eclipsing even the passage of the Affordable Care Act. Presidential candidate and Senator Ted Cruz (R-Tex.) is already calling for the appointment to be made by the next president. 

Senate Majority Leader Mitch McConnell, (R-KY), said that “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”

Surely, other Republican Senators will seek to thwart Obama’s nominee, whoever he or she is.

Has there ever been an example in recent American history (20th century on) where the president nominated a Supreme Court justice in the final year of his presidency? Yes, sort of, but only a few, and only one in the final year of a two-term presidency.

Ronald Reagan saw Anthony Kennedy get sworn in in February 1988. Judge Kennedy was nominated in 1987, after Robert Bork failed to be confirmed.

Herbert Hoover saw Benjamin Cardozo join the high court in March 1932. He was confirmed unanimously by the Senate. Hoover lost his reelection bid to Franklin Roosevelt.

Mahlon Pitney became a Supreme Court justice in 1912, in the last year of William Taft’s first term. Taft lost his re-election bid in a four-way contest against Woodrow Wilson (who won), former President Teddy Roosevelt, and Eugene Debs.

Thus, the situation now facing President Obama and the country, while technically not unprecedented, is quite possibly going to be the most contentious event in this president’s tenure and in the modern history of the Supreme Court.

– Fred Dews

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