As has already been widely reported including at the JewishPress.com, 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.