With the death of Justice Antonin Scalia, there has been quite a lot of debate regarding President Obama’s intentions to nominate a replacement. Can he do this in the last year of his Presidency? The simple answer is found in the very text of the U.S. Constitution, Article II, Section 2, which states that the President shall nominate and appoint judges to the Supreme Court, by and with the advice and consent of the Senate. There is nothing in the text of the Constitution that limits a President’s nomination power to the first three years of the Presidency, or any other time frame.
Accordingly, President Obama may indeed nominate a replacement for Justice Scalia. Of course, that nomination still must be approved by a majority of the Senate. It is not uncommon for the Senate to reject a Presidential nominee. For example, the Senate rejected President Reagan’s 1987 nomination of Robert Bork before unanimously approving Justice Anthony Kennedy. But that is more often than not a political decision. As far as the President’s legal authority to nominate a replacement, the Constitution clearly gives him that power.
Joseph A. Gangi
Farrish Johnson Law Office