Columnist: The legal case against Obama’s Supreme Court pick

Published 12:00 am Saturday, February 20, 2016

By John A. Tures

Contributing columnist

It’s a little-known fact, but there are legal arguments against President Obama being able to make his Supreme Court pick.

From Article III, Section 4 to the famous Supreme Court case Mulberry v. The Bridges of Madison County, a president has no business even nominating someone to be a Supreme Court justice in his final year of office, much less his during his “lame duck” second term.

When conservative intellectual Antonin Scalia, an associate supreme court justice who has served this country for decades, passed away, many Americans made the assumption — based upon their memory of Civics classes — that the U.S. president appoints a nominee to serve on the Supreme Court, with the advice and consent of the U.S. Senate.

Imagine our surprise to learn, before Scalia’s body turned cold, that Senate majority leader Mitch McConnell told President Obama not to even nominate someone to the court, and to “let the American people choose” the next nominee.

So clearly, there must be a legal rationale that allows the voters to pick the nominee, which sounds pretty democratic, right?

Sure enough, in Article III, Section 4, the Founding Fathers wrote, “the President may not nominate a candidate for the Supreme Court if the vacancy shall occur in the year leading up to an election, when the candidate be a ‘lame duck.’ In thy cases, the voters shall select their nominee with their pick of the next president, who will then do the nominating, and the Senate will be doing the advising and consenting.”

This ironclad Constitutional rationale was further upheld by the Supreme Court Case Mulberry v. The Bridges of Madison County, whereby Chief Justice of the Supreme Court Jim Sheriff wrote, “Presidents have no right to nominate a candidate if the opposition party has a good chance of winning. That way, the party that does not control the chief executive has an equal chance of making the pick. There’s nothing wrong with a Supreme Court being deadlocked for a year-and-a-half, or rejecting a fully qualified nominee.”

This powerful legal argument was further upheld by Florida Sen. Marco Rubio. Employing his judicial expertise, presidential candidate Rubio, who hopes to make the pick himself, declared that “no lame duck president has made a Supreme Court pick in 80 years.”

At a campaign rally in South Carolina, another candidate who hopes to make the pick himself, Sen. Ted Cruz said, “We have 80 years of precedent of not confirming Supreme Court justices in an election year.” The next day, this self-described “strict constitutionalist” added, “There is a long tradition that you don’t do this,” on NBC News. The fact that only one vacancy even opened up in an election year since 1940 — in 1968, when a Democrat nominee was filibustered — was not mentioned in the debate.

Of course, Justice Anthony Kennedy, nominated by President Ronald Reagan and confirmed by a Democrat-controlled Senate vote of 97-0 on Feb. 4, 1988, an election year, had no comment. Neither did Justice Samuel Alito and Chief Justice John Roberts, nominated by President George W. Bush when Chief Justice William Rehnquist died, during Bush’s second term, when the Texan was also a “lame duck.”

Therefore, it’s clear that if President Obama even dares to nominate a candidate for the Supreme Court, then he should be impeached and removed from office, for exceeding his Constitutional authority.

Editor’s note: The above column is satire (in case it wasn’t obvious).

John A. Tures is a professor of political science at LaGrange College. He may be reached at