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Obama should pick high court nominee

More than two-thirds of readers who responded to this week’s RBJ Daily Report Snap Poll think President Barack Obama should nominate a successor to U.S. Supreme Court Justice Antonin Scalia.

The death of Scalia was reported Saturday. Within hours, battle lines were drawn over the nomination process for his successor on the nation’s highest court.

Republican Senate Majority Leader Mitch McConnell issued a statement saying “this vacancy should not be filled until we have a new president.” Echoing him were most of the candidates for the GOP presidential nomination.

In a statement Saturday night, however, President Barack Obama said he intended “to fulfill my constitutional responsibility to nominate a successor.” Democratic presidential hopefuls Hillary Clinton and Bernie Sanders both said Obama should fill the vacancy.

Assuming all Democratic senators backed his nominee, Obama would need 14 Republican votes to reach the 60-vote threshold to secure Senate confirmation.

Among current justices, one was confirmed in the final year of a presidency. Justice Anthony Kennedy was nominated by President Ronald Reagan in November 1987 and confirmed in February 1988.

A justice since 1986, Scalia was seen as the leader of the high court’s 5-4 conservative majority. Many legal experts believe that without a successor named, the court will split 4-4 on a number of key cases—involving issues such as immigration, abortion, affirmative action, public labor unions and the Affordable Care Act. Tie votes leave the lower-court decision in place.

Nearly 1,200 readers participated in this week’s poll, conducted Feb. 15 and 16. Among them, 95 percent of Democrats and 68 percent of non-affiliated respondents said Obama should nominate Scalia’s successor. A majority of Republican poll participants—58 percent—think the process should wait until the next president takes office in January.

In your view, should Justice Antonin Scalia’s successor be chosen by President Barack Obama or the next president?
President Obama:  67% 
The next president:  33%

What is your political affiliation?
Democrat:  27%  Republican:  29%  Non-affiliated:  39%  Other:  5%

For information on how the Snap Polls are conducted, click here.

Comments:
According to the Constitution, the president nominates candidates for the Supreme Court. The president is Barack Obama, and it is his constitutional obligation to put forth a nominee. Even Justice Scalia would have agreed!
—Bob Loeb

What possible justification could there be for refusing to fill the vacancy? Short of mere political machinations, of course. The “American people” have already weighed in on this: in 2012, they gave President Obama a second term, and with it the right and responsibility to nominate Supreme Court justices. Yes, even in the fourth year of the term.
—Matthew D. Wilson

Obama has the constitutional right to pick the successor, but I think he would be wise to let the voters choose who gets to pick the successor by waiting until after the general election in November. That way, there doesn’t have to be a tremendous amount of partisan political fighting, and the citizens can determine the type of person they want choosing the next justice. If the situation was reversed, the Democrats would want the same thing. We all know that if Obama chooses someone right away, there will be gridlock in Washington until the general election, and nothing will get accomplished.
—David Wagner

As much as I will not like the choice, I think the president should select the next judge. What surprises me is when President Obama says he must follow the Constitution when he has disregarded it so many times before.
—Joel Stauring, Arkport

Obama has done enough damage. He clearly wants to succeed where FDR failed in packing the court with indoctrinated ideologues. The court needs a young but otherwise exact duplicate of Scalia. Ted Cruz comes to mind. That would be the last figure Obama would nominate.
—Arn Lager

The president is still in position. Let him do his job. We have pending actions that need to be decided. We owe it to the American people regardless of political party affiliation to ensure that we do what is right.
—Shaunta Collier-Santos, CEO, LandNPR Productions

Article II, Section 2 of our Constitution reads: “Power to nominate the Justices is vested in the President of the United States, and appointments are made with the advice and consent of the Senate.” Until noon on January 20, 2017, this is President Obama’s responsibility and he should fulfill it. Leaving this for 11 months will result in 4-4 tie votes on critical issues facing the court. —Dana Miller, Rochester City Council vice president

Obviously the president can nominate his choice for the next Supreme Court justice. However, the Senate has to approve his selection. There is no requirement under the Constitution for the Senate to even vote for a replacement. I think the American people would be better served if the next president chose the candidate.
—Todd Black

Depending on your point of view, this is terribly good or bad timing, but it draws attention to an important function of the presidency. Justice Scalia was appointed when he was 50 years old and sat on the court for 30 years. When we vote for president this fall, we should be mindful that there are two or three other justices that are likely to retire within the next four to eight years. The president we elect will have the opportunity to change the makeup of the court for decades to come. We should consider that when voting for president. Meanwhile, President Obama is empowered to make a nomination and the Senate has the responsibility to deliberate and either confirm a nominee or deny confirmation to that nominee. The process should play out as intended in the Constitution, and let our elected officials on both sides of the ledger execute their duties. Whatever happens, it will provide insight into the character and statesmanship of all involved.
—Arnie Boldt, managing partner, Arnold-Smith Associates

I am a little tired of political games. Okay, I am more than a little tired of them. Choosing a justice to serve on the SCOTUS is a serious matter which should be approached in a serious manner. It is not time for gamesmanship. It is a time for members of the U.S. Senate to be of service to their country.
—John Calia, Fairport

The Constitution of the United States of America, Article II. Section. 2. places the responsibility on the president to nominate justices of the Supreme Court. The U.S. Senate is to confirm such nomination. While I feel very strongly that I would like to see a judge with the same emphasis on constitutional law replace Justice Scalia, we need to follow the U.S. Constitution. Justice Scalia would have ruled in such a way.
—J. L. Burke

The Constitution is clear. The president has the right and arguably the duty to nominate and the Senate should advise and consent, which in my view means allowing an up or down vote.
—Nathan J. Robfogel

Seems to me that the president is constitutionally obligated to submit a nomination and the Senate is similarly obligated to make a good-faith effort at “advice and consent.” Nowhere does the Constitution say, “unless the President is in his last year of office” or “unless a political party hopes to gain an advantage”! At this point, the only hope the president has of a confirmation is to nominate a well-respected moderate. Should the Republicans fail to confirm him/her, nominate Trump or Cruz and then lose both the presidency and the Senate, they may wish they had a chance to vote on a moderate in 2016. Let’s get on with governing the country please!
—Mike Haugh

President Obama is president of the U.S. until January 20, 2017. The U.S. Constitution, which he swore to uphold, says that the president should appoint justices to the Supreme Court. So, of course, he should nominate someone. And, for the Republicans out there who do not agree, if Ted Cruz were president today, would you not want him to nominate a justice? Of course you would. Let’s face it—our government is broken beyond repair. I also find it sad that within three hours of Justice Scalia’s passing, Ted Cruz tweeted that President Obama should not nominate anyone to the court—which then resulted in comments from McConnell and also President Obama. Could not we have simply said RIP and waited some amount of time before we turned it into a partisan issue? I’m not a Scalia fan, but he deserved considerably more respect.
—Faye Casey

I don’t think that this should be an issue at this point. The president was wrong when he announced that he would pick a successor the same day that Scalia passed away without any respect for his family. It was a trying time for any family. As a Republican, I think that they should have stated that they will respect the family and address it after the family got through the shock of Scalia’s sudden death.
—Reno Lippa, Lippa Enterprises LLC

The Constitution calls for the president to present the name of a new justice to the Senate. If the Senate chooses not to approve the nominee, that is its prerogative.
—Kathy Nixon

A president should fill vacancies during his term. The Senate should move on this nomination and the other stalled judicial nominations. The same should be true for President Obama’s successor. Our ridiculous two-year presidential elections are bad enough. We should not turn second terms into two-year terms.
—Bill Murphy

Let the family mourn and bring this up later.
—Ed Jackson

The law of the land says the president nominates Supreme Court justices. The people of the United States elected Barack Obama as president so we know the people’s voice in the matter. Once nominated, the Senate can and should vet that candidate appropriately—history shows that even in election years, a candidate can be found and confirmed.
—Dave Vanable, Honeoye Falls

The U.S. Constitution is explicit. This situation has occurred in the past and the Constitution has ruled. Why should Republican political bile trump (no pun intended) the Constitution?!
—Tom Gillett, NYSUT

It is the constitutional duty of both the sitting president and the Senate to address this issue immediately. McConnell is blatantly misstating past history regarding the Supreme Court appointments in the last year of the president’s term. Justice Kennedy was appointed the final year of President Reagan’s term.
—C. Lewis, Perinton

It’s absurd that this is even a debate. A vacancy has unexpectedly occurred on the court. The sitting president’s job/duty is to nominate a replacement. End of story. Any other talk after that is just self-serving political calculation. Ask any of those running for president if they plan to abdicate their responsibilities during the last full year of the job if they win. … The people have weighed in; we elected Obama, twice. We want him to do his job. If Senate Republicans block or don’t vote, they will be ending the way they began with Obama—dysfunctional, incompetent, mean-spirited, obstruction. Par for the course for the past seven years.
—Monica Monte, Fairport

It is the sitting president’s duty to nominate a new justice. The ongoing bickering and partisanship in Congress now threaten to impede the work of the judicial branch of the government. Very sad comment on the state of U.S. government.
—Richard Hermann

It is the Senate’s duty to (confirm) and the president’s duty to choose a nominee. It is not the “next” president’s duty unless a justice dies or retires on his or her watch. Letting the court remain a justice short for nearly a year is absolutely playing politics at the expense of the nation.
—Steve Lipson, Greece

He is the duly elected president after all. With a duty to do so.
—Jay Ross

This is ridiculous bipartisan bull. First, any nominee still has to go through confirmation hearings, so whether nominated by the current president, or the next, there is due process. Second, this so-called Thurman Rule is not actually a rule, nor, if it was, is the president in his last six months in office. Mitch McConnell himself stated it was a bogus rule when the Democrats threatened to invoke it during the Bush presidency. The way that all of these politicians flip-flop, and use party lines, to incite a media frenzy is nauseating. It is no wonder nothing of consequence is ever done in Washington.
—Stephen Brown

This is a nation that rightly believes the tenet that, “Justice delayed is justice denied.” Enough of Trump and “Delay, delay, delay” and every other politician who claims they respect the freedoms of Americans, but then put their own ambitions first. We elected a president and a Senate to do a job. Do it!
—Tony V. Vecchiotti, the Northwoods Corp.

Since 1900 eight nominations have been made and six confirmed by the Senate—most recently Anthony Kennedy by President Reagan during his last year in office.
—Carlos Mercado

As much as I shudder to think of another left-leaning justice on the Supreme Court, the vacancy happened on Obama’s watch and it should be filled on his watch. Or at least attempted to be filled—after all, the Republicans probably won’t let it get through the Senate anyway. We Republicans may not like the rules of the game when they’re not in our favor, but this constitutional process works. And we ought to know that better than anyone.
—B. Canley, Fairport

Given that there are very few “precedents” to draw from the relatively few number of times that vacancies arise on the court, the one precedent that should be looked at is the average number of days a president normally takes to nominate someone and use that as a guide. Obama has 11 months still to govern. That is a long time to have a vacancy on the court and seems an inappropriate and exaggerated delay. If the vacancy arose after the election and before the swearing in, I would agree that to defer would be appropriate. If delaying were a valid argument, what other decisions should a sitting president defer?
—Thomas Schnorr, president, RE/MAX Realty Group

If Obama shouldn’t nominate a successor until a new president is elected, then any senator up for election in 2016 shouldn’t vote on anything consequential until his/her successor is elected. Obama has been elected twice and Supreme Court appointments were an important consideration in his races and are his constitutional duty. Even unelected President Gerald Ford nominated someone for the high court. If the situation were reversed and a lame-duck Republican president had the chance to tilt the court to the right, you better believe they’d be screaming for him to do so like (stuck) pigs.
—Rick Hill

The Senate has the right to block a specific justice and precedent for doing so (see Robert Bork). Ultimately, though, they should play ball and come together and agree on an appointment. It is unfortunate that the politics of our nation have come to play so much in the interpretation of law. Me? I would nominate Chris Christie.
—Ryan Peck, Rochester

It is the duty and responsibility of the president of the United States to appoint someone to the Supreme Court in case of a vacancy. Unless I am mistaken, Barack Obama is still the president and will be until January of ’17.
—David Bayer

Here is a novel idea.: What would Justice Scalia have done to have his successor appointed? Let’s do the smart thing. Do the right thing. The Constitution says that the president will advise and the Senate will consent … or not. How about stopping the crap and letting our democracy work? That would be a novel idea too.
—Jay Birnbaum

Of course Obama should nominate a replacement for the SCOTUS vacancy. It’s his constitutional duty! The Senate’s role is to approve or deny. Clearly, this call for delay by GOP leaders such as McConnell is just another example of how party extremists have warped the soul and sense of governing responsibility that was the hallmark of the party I signed up for many years ago.
—R.W. Frye

I don’t recall seeing this type of question or concern when Republican President Reagan nominated Justice Kennedy in his last year or so in office. The full list (as offered by addictinginfo.org) is as follows: Oliver Ellsworth, 1796; Samuel Chase, 1796; William Johnson, 1804; Philip Barbour, 1836; Roger Taney, 1836; Melville Fuller, 1888; Lucius Lamar, 1888; George Shiras, 1892; Mahlon Pitney, 1912; John Clarke, 1916; Louis Brandeis, 1916; Benjamin Cardozo, 1932; Frank Murphy, 1940; and Anthony Kennedy, 1988. Nixon nominated two justices that were approved in December 1971, a year before he left office. John Paul Stevens, nominated by President Ford, was appointed in December 1975, a year before Ford lost re-election. Apparently Republicans think that Obama should not be given the same power of appointment as other presidents have been given. But of course, Republicans have never looked back at historical precedents unless it favors their political agenda. Obama is the president for another 11 months and the people elected him overwhelmingly, so he has the right and responsibility to nominate a Supreme Court justice.
—Michael Thornton, Penfield

This is the president’s right to nominate a replacement. He will have to select someone that the Senate can find acceptable. I just love a system of checks and balances. Maybe the president can find a way to work with the other half of the country.
—Daniel Herpst

President Obama was elected by the people of the United States. Republicans who say they will continue to work to subvert the process of government, do so at their own risk. The American people already hold Congress in contempt for exactly this type of behavior.
—Chris Juby

The government should act in the interests of the people. And it is not in the interest of the people to have an empty Supreme Court seat for 1.5 years. The president and the Senate should negotiate an acceptable justice and confirm him or her as soon as possible. That is what we pay them to do.
—Fred Dewey, owner, Alive! 9 to 5

He was elected for eight years, not seven, and he won by over 5 million votes. The GOP spin is and actions are in reality unprecedented. The Constitution is clear and late Justice Scalia would be the first to say it is the right and duty of the president to fill the vacancy.
—Jim Bertolone

Obama should issue an executive order dissolving the Supreme Court and requiring that he be given a crown and scepter.
—Kevin Jenkins, Gates

The Republican Senate, as usual, is declaring that its job is to obstruct the normal process of running this country, rather than its actual job. Their made-up rule, which they violated under Reagan, is just that—a made-up informal rule, not a law. The law says that the president selects and the Senate approves. Do your job, Congress. The real irony is that they say the reason is that “the people should select based on who they voted for.” Um, I hate to tell you this, Congress, but the people voted for Obama. Twice. No matter who ends up in that office, they’ll have less experience as president than Obama, or do you always let the new guy make all the important decisions in your companies?
—Lee Drake, CEO, OS-Cubed Inc.

This is political theatre at its worst. The Constitution instructs the president to nominate a successor, and that’s exactly what the president should do. The Senate is then empowered to advise and consent. If the nominee is not acceptable to the Senate, then the nominee should be rejected. Both parties are grandstanding, and it helps no one.
—Frank Cania, Driven HR LLC

Time should be taken to ensure the next judge will provide the leadership necessary to take our great nation into the next decades. Leadership that represents the U.S. Constitution, not political policies.
—Tom P. Bartolini

Why is this even a question? If anyone answers “The next president,” I would kindly refer them to Article Two of the United States Constitution.
—DeWain Feller

Scalia himself would say that there is no question about this issue. He would absolutely rule that the sitting president has the responsibility, duty and legal authority to make the best appointment as quickly as possible to avoid problems in the Supreme Court and the country. Imagine if the Democrats were telling a Republican president that they could not make this appointment? The Republican stance is illegal, outrageous and frankly disgusting. This is the party that is out to destroy the entire structure of the U.S. government. They are acting above the law and below the benchmark of civility and morality.
—Eve Elzenga

This should not even be an issue. The American people elected the president for four years, not three. It should be as straightforward as that. He has a responsibility to carry out his role until replaced.
—Geoff Barrow, Gillespie Associates

Do you want a person like Eric Holder on the Supreme Court? This country can’t stand any more left-wing nut cases in a high position. They have severely damaged America through seven-plus of Obama. Let’s just hope that Obama gives up the White House when it is time to do so next January.
—Jim Cronin

President Obama knows the Republicans will not approve anyone he nominates. He just likes to keep things stirred up!!
—J.A. DePaolis, Penfield

This is just more to-be-expected obstructionism, stonewalling, and partisan politics from members of the same “element” of the Republican Party—Obama hasn’t even nominated anyone yet, and these members are already crying “foul” per their own agenda. Their position was predictable given their past performance. If Obama stood on the front lawn of the White House, looked up and said the sky was blue, the members of that “element” would refute that just as they’ve said “no” about most everything else Obama’s proposed and tried to accomplish in his two terms. The members of that “element” would then predictably proceed, after denying Obama’s color blue, to tell the country that they alone are self-professedly and solely qualified to pronounce what color the sky is on behalf of the entire country. Surely, did any of your readers NOT expect that “element” to espouse that position??
—Gary Westman

Presidents used to get whoever they chose for their Supreme Court nominees. Judge Scalia was elected with a 98-to-2 majority ballot of the Senate. And one of the two dissenting votes came from the Conservative, Barry Goldwater. In the past I heard a rumor that if Hillary was elected she would nominate Barack Obama for the Supreme Court. The major change in the tone of Supreme Court nominations came with the nominations of Robert Bork and Clarence Thomas. Ever since, all Supreme Court nominations have been very contentious. I can’t see the Senate Republicans having a hearing or a vote on a Supreme Court nominee until after the next election. I can’t see Barack Obama nominating a liberal Republican who might be certified by the conservative Republicans.
—Clifford Jacobson M.D.; Vanguard Psychiatric Services PC

President Obama certainly has the right to nominate a person to replace Justice Scalia. However, for the good of the country, the U.S. Senate should legally delay the appointment until the next president takes office. Obama has done tremendous damage to America in seven years … (including) his appointment of Justices Kagan and Sotomayor. (They) are leftists who have already undermined the Constitution and America.
—John Rynne

It would be unprecedented for President Obama to defer his proper and clear constitutional responsibility to the next president. Ironically, it would also be an insult to former Justice Scalia, who strongly believed in the strict interpretation of the Constitution. If the Senate decided to defer their constitutional responsibility to “advise and consent” regarding President Obama’s nominee, that’s their choice. Despite the claims of several Republican presidential candidates, there is strong precedent for confirming Supreme Court appointments in an election year. Current Justice Kennedy was approved by the Senate in an election year.
—Bob Volpe, Highland Development Services

While on the one hand President Obama should feel free to nominate his choice, the Senate, on the other hand, should feel free to reject his nominee. If, perchance, Obama’s nominee happens to be an outstanding middle-of-the-road moderate, there might be a chance for Senate approval!
—Tom Shea, Thomas P. Shea Agency Inc.

The Republicans have once again shot themselves in the foot. They have now, without even knowing who Obama might nominate, turned this into a political issue, rather than treating it with the respect it should be accorded.
—Hal Gaffin, Fairport

How ironic that the party that touts strict interpretation of the Constitution has a Senate majority leader who appears to be intentionally ignoring the part of the Constitution that says “if a vacancy occurs on the Supreme Court, the President must choose a nominee and send it to the Senate for advice and consent, for basically an up or down vote.” Nowhere does the Constitution say that the Senate has the authority to tell the president we will not consider any nominee you send to us until the next president is elected. I agree with the Constitution; it’s time for the Senate to do its job—vote the President’s nominee up or down.
—Peter Bonenfant, Fairport

2/12/2016 (c) 2016 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or email rbj@rbj.net.

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