There has been a firestorm of controversy about whether President Obama should nominate Justice Scalia’s successor, with Republicans arguing that the nomination be held in abeyance until a new President takes office in January 2017. They have vowed to block any appointment, regardless of who it is and regardless of the fact that this would leave a vacancy on the Supreme Court for at least a year. President Obama has vowed to fulfill his constitutional duty to nominate a new justice and he has called on the Unites States Senate to fulfill its constitutional duty to consider and confirm the nominee.
There is ample precedent for the President’s position. Since 1900, Presidents have nominated and the Senate has confirmed at least 6 Supreme Court Justices in a presidential election year. In addition, President Eisenhower made a recess appointment — Justice Brennan, who was later confirmed by the full Senate and was a distinguished member of the court for many years. (President Obama has announced that he will make the nomination when the Senate returns and not use his recess appointment power.) Only one election year nomination was blocked, Abe Fortas, on a bipartisan vote.