[ot-caption title=”Antonin Scalia’s death early last month has created a bitter partisan rivalry over filling his spot on the Supreme Court. (via, Steve Petteway, Staff Photographer of the Supreme Court)”]

The Constitution says in Article II Section II that the President has the power to nominate Supreme Court Justices with the advice and consent of the senate.  So, what is all the fuss about?  Now that Antonin Scalia, a longtime conservative of the Supreme Court, has passed away, Obama believes he should be able to nominate the next justice for Senate approval under his Constitutional duty.  However, the Republicans disagree with this, especially Senate Majority Leader Mitch McConnell who has vowed to block any nominee the President appoints and not give the nominee a one-on-one meeting that is usually customary in similar situations.  Both sides are holding strongly to their positions, and the general public will continue to keep up with this battle as the year moves on.

The Republicans are fighting back against Obama’s nomination with many different arguments.  One argument calls for the people to have a say in who is elected to the Supreme Court. The Democrats responded by saying that this “public participation” already occurred in 2012, with the election of Barack Obama to the presidency.  The Republicans also argue that Obama, as a lame duck (a President who is in his last 6 months in office) under the Thurmond Rule,  should not be allowed to nominate a justice, and they cited 80 years of empirical evidence to prove this.  The Democrats were quick to point out that this is not the last six months of Obama’s presidency and therefore, the rule should not apply.  Democrats also pointed out examples of former presidents who have made Supreme Court appointments in the last year of their presidency, such as Ronald Reagan who appointed current Supreme Court Justice Anthony Kennedy in the last year of his term. Actually, almost one third of presidents have appointed a justice in the last year of their presidency.  These are some of the arguments that the Democrats have been winning, and this, combined with the country’s strong ties to the Constitution, explains why, according to People-Press, 56% of people want the Senate to act on the nomination, while only 38% don’t.

The Republicans also have some arguments in this debate that have gone their way.  One of their main arguments is the hypocritical nature of what the Democrats are saying.  In 1992, there was a role reversal, with a Democrat controlled Senate blocking Republican nominations to the courts, in hopes of allowing their presidential nominee Bill Clinton to do it.  The Democrats have struggled to combat this argument.  Another key argument the Republicans have made is that they do not have to confirm justices, and they can simply say no to any justice that Obama nominates.  The Democrats have fired back here claiming it is the Senate’s Constitutional duty to at least vote on the justice appointment and what is happening now does not follow the Constitution, as the Senate is not even willing to hear Obama’s nomination.  These stronger arguments from the Republicans should continue to make this issue a controversial topic heading into the spring and summer.

Regardless of what happens, Obama has realized he is going to need to compromise one way or another.  He has already taken some steps in doing this, such as trying to nominate more moderate justices.  Obama has even gone so far as to consider a Republican, Brian Sandoval, who is the Governor of Nevada.  Whomever Obama ends up choosing, it is clear that things will start happening very soon because Obama does not have a lot of time left in office.  This intensely partisan battle will continue until there is either a justice nominated by Obama or the Republican-dominated Senate successfully waits until the 2016 election. Regardless, be prepared for some 4-4 decisions at the Supreme Court in the meantime.

Sources: NanoNews, Huffington Post, Daily Signal, People Press, NPR, Cornell Law

Photo Source: Steve Petteway