Can Obama Appoint a New Supreme Court Justice in an Election Year?

Justice Antonin Scalia

As the nation mourns the death of Supreme Court Justice Antonin Scalia, who died over the weekend of natural causes, the politicos are already looking ahead to debate whether or not President Obama will be able to pick his replacement on the bench during an election year.

Politico has already begun speculating his short-list of potential nominees, including: D.C. Circuit Judge Sri Srinivasan, Paul Watford, Patricia Ann Millett, Merrick Garland, and US Attorney General Loretta Lynch.

But can -and should- Obama pick Scalia’s replacement when he’s got one foot out the door of the Oval Office?

Fox News explains the dilemma:

The Constitution gives the Senate “advice and consent” powers over a presidential nomination to the Supreme Court. Ted Cruz, one of the two GOP senators running for president, told NBC’s “Meet the Press” that the GOP-controlled Senate would be doing its job by blocking a nomination by a president with less than a year left in office.

“We’re advising that a lame-duck president in an election year is not going to be able to tip the balance of the Supreme Court,” Cruz said. But the top Democrat on the Senate Judiciary Committee, which would hold hearings on a nominee, said it would be “sheer dereliction of duty for the Senate not to have a hearing, not to have a vote.”

Now here’s where it gets interesting…. While Senate Democrats insist Obama has a constitutional obligation to pick a replacement, they were arguing against this very same point in 1960. In fact, it was Senate Democrats who passed a resolution against election year Supreme Court appointments.

According to the Washington Post:

[I]n August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.” Each of President Eisenhower’s SCOTUS appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment. Not surprisingly, the Republicans objected, insisting that the Court should have a full complement of Justices at all times. Of course, the partisan arguments will be exactly the opposite this time.

Woops. I guess Democrats only like to follow the law, when the law follows their ideological agenda.

As if it were even possible, the stakes just got even higher for the 2016 election.