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Insulting JusticeScalia

The Huffington Post logo The Huffington Post 19/02/2016 Richard Klass

Can someone be turning in their grave when they are lying in repose in the Supreme Court of the United States (SCOTUS) building. If so, Justice Scalia certainly is today if he can hear the arguments being made about the process of choosing someone to fill the vacancy he so untimely left.
Take the arguments of Senators Mitch McConnell and Chuck Grassley in the 19 February Washington Post contending that the next president not the current should pick a nominee.
"No one disputes the president's authority to nominate a successor to Scalia, but as inconvenient as it may be for this president, Article II, Section 2, of the Constitution grants the Senate the power to provide, or as the case may be, withhold its consent," ..... "Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court. It is today the American people, rather than a lame-duck president whose priorities they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia."
Let's see where this argument leads. If they are arguing that the president should not submit a nomination in the last year of the presidential term, that restriction should apply ALSO to the first presidential term. Indeed, of the eleven presidents who have served since the 22nd amendment was ratified in Feb 1951, only five have served two terms. ( Eisenhower, Reagan, Clinton, George W. Bush and Obama). Of the rest, three were defeated (Carter, Ford and George H.W. Bush) Kennedy was assassinated , Johnson declined running and , Nixon left office in disgrace . Since a second term limitation is less than a fifty-fifty proposition, the restriction should logically apply to the fourth year of an initial term also. So the president should not make a SCOTUS appointment in the fourth year of either term by this logic.
BUT wait, the last "national election" cited by the Senators was not a presidential election but a Congressional off-year election. And those elections elect one-third of the Senators charged with advising and consenting to a SCOTUS appointment. By their logic, the lame duck Senate should not act in the midst of fan off-year lection so that the American people can "weigh in on who they trust "to vote on the nomination. That would leave only a window of the first and third year of a presidential term to nominate and approve s SCOTUs nominee.
It is not hard to imagine how the "originalist "would react to such a reductio ad absurdum. And it is not difficult to imagine this insult to his beloved Constitution causing him to turn in his grave when he gets there.

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