But how might an originalist analyze the current dispute over the whether our “lame duck” president may nominate a replacement for Scalia -- and, if so, whether the Senate should consider such a nominee? For example, would an originalist understanding of the Constitution support the view Senate Majority Leader Mitch McConnell (R-Ky.) expressed shortly after Scalia’s death was announced that “this vacancy should not be filled until we have a new president?"
The appointments clause of the Constitution’s Article II provides that the president “shall nominate, and by and with the Advice and Consent of the Senate … Judges of the supreme Court.” The clause imposes upon the president the duty to nominate Supreme Court justices, but the clause in no way differentiates between presidents who are “lame ducks” and those who are not. The clause does not say, for example, that presidents who have three years left in office are supposed to nominate Supreme Court replacements, but that presidents who have only three months left in office are exempt. The plain language of the text suggests that the length of the president’s remaining time in office is constitutionally irrelevant.
How was that text understood around the time of its enactment? Did people then understand it to bar lame-duck presidents from nominating Supreme Court justices? Once again, we find no such prohibition, but rather a striking example -- striking, because it is so similar to the current circumstances -- of precisely the opposite. This example comes from George Washington's second term as president. In reading it, keep in mind that President Obama's second term is set to expire approximately 11 months from now, on Jan. 20.
Washington began his second term as president on March 4, 1793, and concluded it four years later on March 4, 1797. On March 3, 1796 – a year and a day before his second term was to expire – Washington nominated Oliver Ellsworth, a drafter of the Constitution and then-senator from Connecticut, to become the third chief justice of the Supreme Court, and Ellsworth was unanimously confirmed by the Senate the very next day. (How times have changed!)
It seems highly implausible to argue that the difference between Washington’s remaining time in office and Obama’s – approximately one month – is of constitutional relevance. As with the text of the Constitution, the historical record from the time of the Constitution’s enactment does not support the view that lame-duck presidents exceed their power by nominating Supreme Court justices at this juncture.
Does this mean that the Senate has no role to play in the process? Of course not. The Constitution states that the president shall nominate justices “by and with the Advice and Consent of the Senate.” If the Senate chooses to reject a nominee, that is certainly within its power.
The deeper point, however, is that it is hard to see why those wishing to honor the originalist principle for which Scalia stood are voicing such strong objection to the Senate voting on the nominee of a lame-duck President Obama. They should, if they wish, object to the particular person who is nominated, but they should not, if they believe in constitutional originalism, object to the nomination process itself.
Jonathan R. Cohen is a professor of law at the University of Florida. He blogs at https://facultyblogs.law.ufl.edu/author/cohenjrufl-edu.