A Case Against Appointing A Supreme Court Justice Before This President's Term Is Complete

With the untimely passing of Justice Scalia, the nomination of a replacement could be imminent. President Obama has indicated his intention to do so. And, doing so is his right per the laws of our land. But, should he?

Up front, there is no law or precedent governing the selection of a new Supreme Court Justice other than that stated in the US Constitution. The process is this: the president nominates the person of his/her choice and the Senate has the sole authority to accept or deny the nomination. That's it in total. There is no forcing function for the president to nominte nor for the Senate to "advise & consent" - and no time limit for either to occur.

Article II, Section 2, Clause 2 of the United States Constitution details the "appointment process" while that same Clause specifies the confirmation of an appointee by the statement, "by and with the advice and consent of the Senate".

With that being offered, ...

The differences between the ideologies of conservatives and progressives are quite identifiable and distinct. The media would have us believe that conservatives, by and large, live in the Republican party and progressives live in the Democratic party. Or, if you are a Republican than you must be a conservative and if you are a Democrat you must be a liberal or progressive. However, at least on the Republican side, this clearly is not the case.

Republicans hold sway in both houses of Congress. But, more often than not, Republicans side with the president on his progressive agenda. This occurs despite the fact that in 2012 "the will of the people" gave Republicans control of the House and in 2014 they did the same with the Senate. In so doing the people displayed their collective repudiation of this president's policies.

Why then would Republicans, some newly elected, side with the president? Is this because Republicans fear being called "racist" should they disagree with the president? Or, is it that they, in fact, tend to want the same things as identified progressives because doing so, they feel, will more likely keep them in office?

Whatever the reason, the American people seem to be at odds with their "representation" in general. The majority of Americans identify with conservative values, clearly a difference with many of their representatives in Congress.

Justice Scalia was soundly in the conservative camp. He believed in the strict interpretation of the Constitution. The Constitution does not offer that statement of law supportive of the progressive agenda. Whether it should or not is a separate question - but, it does not.

The president is the "poster child" for the progressive agenda. Some people take joy in blaming him for all that is wrong with our country today - and there is much about which to complain. However, the president, alone, is not responsible for much of anything - Congress is and has been a willing partner. Together, they have brought the progressive agenda to the forefront.

Why is this important to understand? Because the appointment of a replacement Supreme Court Justice by this president would throw the Court into an imbalance toward the progressive side. And, as stated, the majority of Americans are conservative in nature.

But, that's not the only reason.

There are several cases scheduled for the Court that are being brought specifically against the president's progressive stance. Consider: how seemly would it be for a person on trial to be allowed to select their own, personal choice for judge to hear their case? I know you and I would not have this available to us! Why should this president?

To be somewhat specific, the following cases are up for review by the Court:

   Whole Woman’s Health v. Cole,

   Zubik v. Burwell,

   Friedrichs v. California Teachers Association,

   Fisher v. University of Texas,

   Trinity Lutheran Church of Columbia v. Pauley,

   A Decision on the Clean Power Plan,


   A challenge to Obama’s latest round of executive actions on immigration

A ruling by the Supreme Court against the constitutionality of any or all of the above would set the president's agenda back quite a bit. "Packing" the Court with a clear progressive majority would ensure the president's agenda.

Of course, no one knows what the results of this year's presidential election will be. There is every likelihood that a Republican, someone with conservative values, may be our next president. Packing the Court at this time seems to be at significant odds with the feelings of the American people in general and clearly at odds with democracy. After all, the confirmation of a Supreme Court Justice is a lifetime appointment.

Of course it is entirely possible that another progressive is elected to the presidency.

As this president has only a few months left in office, the next president will need the maximum help in the move to cure what ills exist in this country. We should not want the next president, conservative or progressive/liberal, to be saddled with a Court that is at odds with the next president's intentions.

There is plenty of historical precedent for waiting to confirm a new member of SCOTUS. Click Here, Click Here, and especially for the Democrats, Click Here for examples.

And, of course, there's always this:

Now, consider what the current president had to say on the appointment of a Justice to the Supreme Court vis-a-vis the power of the president vs. Congress, et al. The pertinent portion of this video starts at about 3 minutes, 30 seconds. Note: this president voted against this nominee. There is a bit of irony here.

No, a few months isn't all that long to wait to appoint/confirm when one considers that a SCOTUS appointment is for life. If the people elect someone opposed to the president's policy in this next election OR if they vote to continue this president's policies, waiting is a good thing.

Let's let the next president select his/her own nominee. Maximize their chance, whoever it is, to succeed.

For any nominee made by this president, the Senate should refuse to confirm a new Court member until after the next president takes office.

Don't think I'm correct in this? Well, back in 1992 the current Vice President, Joe Biden, expressed his opinion on this issue.