Should the President nominate a replacement for Scalia? If so, should Congress consider such a nomination, or should they simply let it die?
It’s been almost forever since an appointment from a Lame Duck was confirmed!
Even Charles Schumer once agreed:
Seems like it’s been about 80 years since a Lame Duck made a nomination that passed, and even when it did it lead to problems for the party in power at the time of the nomination!
It has always been considered bad form to even nominate, and in this case, as Schumer pointed out in his hypothetical, it would seriously unbalance the court, although this time, it would not be in his favor as when he spoke of in hypotheticals back in 07.
A brief history of Lame Duck Supreme Court nominations
President Tyler had 9 nominations rejected, and had vacancies for more than a year if I recall my history correctly. Some appointments were made by Lame Ducks and rejected. It is, in general a politically ruinous situation for the party leaving office. In a number of cases, it was the straw that broke the camel’s back in the following election! It almost always leads to disaster for the party of the Lame Duck. With that in mind, perhaps we should encourage the President to make that nomination, since it usually leads to his own party’s defeat.
Separation of powers
The point here should be that the court is in serious danger of becoming seriously damaging to the Constitution!
This is a real issue given the increasing power vested in the executive and judicial branches as the house and senate have eroded their own powers to a point of near uncontrol!
The increasing use of executive order by both parties, and the increasing of legislating via court are leading to a serious lack of power for the people in the people’s houses! Eroding it more by a lame duck appointment is not going to help with that!
The houses of Congress should reject any nomination by the president unless that nomination clearly follows in the footsteps of judge Scalia’s Constitutional conservatism, or unless the nominee is to be clearly defeated in an up or down vote.
This is not a good idea for conservatives, or a good idea for liberals, it is a good idea for all who want a Constitutional Democratic Republic!