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U.S. President Ronald Reagan (L) and then Supreme Court nominee Anthony Kennedy. Nov. 11, 1987

As has already been widely reported including at the, Associate Justice of the Supreme Court Antonin Scalia died in his sleep early Saturday, Feb. 13.

Many U.S. presidential campaign watchers immediately noted that Scalia’s loss from the bench meant an opportunity for President Barack Obama to name another justice.


Given that the Court has been fairly evenly balanced for a long time, the chance for Obama to name someone whom he would consider appropriate to replace the far-right wingman of the Court is enough to scare the pants off anyone with a decidedly different political orientation.

The two real gatekeepers to the Supreme Court bench – both Republicans – within hours of being notified of Scalia’s death, both issued statements that the next appointment to the Supreme Court should be made by the next president.

As noted in our earlier article, the chair of the Senate Judiciary Committee, Senator Charles Grassley (R-IA), issued a statement that sought to undercut those suggesting this president – that is, Obama – should be the one to fill the vacancy.

After praising Scalia’s intellect and orientation, Grassley made clear that as far as he was concerned, the current lame duck president would not be the one to name Scalia’s replacement. Grassley grounded that position by noting “it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”

But, as some careful Court watchers noted, Sen. Grassley’s statement is not accurate, if you understand “standard practice” to mean “it has not ever happened.”

The truth is that Justice Anthony M. Kennedy was nominated by President Ronald Reagan in 1987 and took the oath of office in February. Less than a year later, President George H.W. Bush was sworn into office.

It must be noted, however, that that particular appointment process was especially protracted, with two choices offered by Reagan that were rebuffed.

Reagan first nominated Judge Robert Bork on July 1, 1987, well before the election year began. Bork was rejected by the Senate Judiciary Committee and then Reagan nominated Douglas Ginsburg – now a judge on the U.S. Court of Appeals for the D.C. Circuit. Ginsburg  withdrew his name from consideration after a journalist revealed that he had smoked marijuana at a party. It was only then that Reagan nominated Anthony Kennedy who was ultimately sworn in just under a year before President Bush’s inaugural.

In other words, the vacancy being filled occurred, and the appointment process began, not in the last year of Reagan’s term, but in the year prior to that.

It is important to get all the details correct and, if necessary, provide the context for anomalous situations, such as the Kennedy appointment during a presidential election year.


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Lori Lowenthal Marcus is a contributor to the A graduate of Harvard Law School, she previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools. You can reach her by email:


  1. What all the right wing oriented claims about the last year and presidental appointments to SCOTUS (including the one in this article) fail to mention, is that most justices choose to resign before they die, enabling them to pick the President who will replace them. Since Presidents usually bring more party members along when they run and lose power after the midterms, most Supreme Court justices resign in the first or second year of a Presidential term. This, not some ghostly rule or custom, is why the appointments in the final year are rare.

    There is no example of a SCOTUS seat vacated in February of the election year in which the POTUS was restrained from appointing a successor. This claim is a trumped up excuse for Republicans to not even consider the President's proposed appointment.

    I do not expect the Republicans to change their position. In 2011 and 2012 Republicans blocked consideration of many lower-court appointees in the hope that Obama would be defeated and the next POTUS would be Republican. This is not, however, based on any tradition. It is merely a grab for power, using a false narrative as cover.

  2. Victoria states: "entitled? that scum is not even entitled to work as a caretaker at the white house".

    Vickie, Sweetie-pie –

    Do you need any BandAids for those knuckles you're dragging?

    As "The Donald" would say, "Vickie, Sweetie-Pie, YOU ARE A TOTAL LOSER!!"

  3. Regardless of what is said or by whom, I hope that none of you think, for even the smallest amount ot time, that the current POTUS cares anything for legalities or traditions. He's going to do whatever he can to carry out his left wing/socialist agenda (as he's already done) and will not let the rule of law or (even) the constitution stand in his way.
    Over the past 7 years, he has etither bypassed or co-opted Congress and the Supreme Court in his march to consolfdate power in the executive branch.
    I think he'll do whatever he wants and dare people to stop him. The question is does anyone have the courage and votes to stop him.

  4. Obama is arguably the most knowledgeable Constitutional lawyer in U.S. history and because he knows how to use it does not mean he "bypasses" Congress or the Court. As for whether or not he nominates someone to replace Scalia… of course he will… he'll be completely within the law and it's appropriate for the president to nominate the justices… if for no other reason than to bring the battle of civil rights and personal rights to the forefront of this election. Jews, of any people, should remember Germans deprived them of their rights and it was only after the war that the Germans claimed "we didn't know, we didn't understand, we were lied to."

  5. Just think Irwin… if Obama doesn't nominate someone.. .your grand children and great grandchildren may be REQUIRED to learn Christian prayer in school… doesn't a far right Supreme Court backed by the world's largest and advanced military sound earily familiar? such a court would have the ability to make the nuremberg court / laws look like child's play.

  6. Ummm… he has to… it's his job.. and he's not about to cower because republicans don't want him to do his job… on principle, the business of the people is paramount and nothing can stand in the way of the business of the people. Regardless of whether his nominated person is confirmed, the process will bring discussion of your rights to the forefront in this election. This may be the trigger that brings millions of heretofore apathetic young people to the polls… the likely change over of the court… likely FOUR justices in the next four years… will decide if the government can dictate a woman's womb… if Christian prayer can be required in schools… if corporations can continue to be thought of as people. If GOD works in misterious ways, Scalia (of all of them) died now to create this situation.

  7. Michael J Zanoni So u want a l iberal court . That will dismantle the constiution. .U got to be kidding that obama is the most knowledgdable constituional lawyer. Well how come he is always going around the constitution. U have eaten the progressive pie. Now its time for a good ol, enema.

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