The Constitution Doesn't Term-Limit Appointment of Supreme Court Justices

The Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the Supreme Court." The Constitution doesn't say "may," it says "shall." Within a very short time of the public announcement of the death of Supreme Court Justice Antonin Scalia, Senate Majority Leader Mitch McConnell announced that the appointment of Scalia's replacement must await the inauguration of the next president. Shortly thereafter, all of the remaining Republican candidates for the presidency fell in line with McConnell's position. Donald Trump counseled "Delay, delay, delay." Dr. Ben Carson said: "We should not allow a judge to be appointed during [this president's] time."

Mitch McConnell and other Republican leaders have not always been proponents of the proposition that presidents should not be empowered to appoint Supreme Court justices in the last year of their terms in office. McConnell wrote the following in a 1970 law review article: "The Senate should discount the philosophy of the nominee... The president is presumably elected by the people to carry out a program and altering the ideological direction of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform." The Republican leadership had no problem when President Ronald Reagan,  the patron saint of many of them, nominated Anthony Kennedy to fill a Supreme Court vacancy in November 1987 and then be confirmed by a Democratic Senate majority in February 1988, the last year of Reagan's tenure in office.

President Reagan had no problem with nominating a Supreme Court justice when he met the definition of  a lame duck. On January 19, 1988, Reagan said: "This is the year when Judge Anthony Kennedy will be confirmed and the Supreme Court will again be brought up to full strength. The Federal judiciary is too important to be made a political football. I would hope, and the American people should expect, not only for Judge Kennedy's confirmation but for the Senate to get to work and act on 27 other judicial nominations that have been left in limbo for quite awhile now." He also urged the Senate to confirm his choice in his State of the Union speech on January 25, 1988. Reagan also said: "Every day that passes with a Supreme Court below full strength impairs the people's business in that crucially important body."

Clarence Thomas was confirmed as a Supreme Court justice in the fall of 1991, well after candidates had begun positioning themselves for the 1992 election.

Professor Timothy Huebner wrote the following in a New York Times oped: "On 13 occasions, a vacancy on the nation's highest court has occurred -- through death, retirement or resignation -- during a presidential election year -- in 11 of these instances, the Senate took action on the president's nominations. In all five cases in which a vacancy occurred during the first quarter of the year, the president successfully nominated a replacement." Louis Brandeis was nominated in 1916 and he was confirmed on June 1, 1916. Two days after Brandeis was confirmed, Justice Hughes resigned from the Supreme Court. His vacancy was filled in two months. Supreme Court Justice Sherman Minton left the Court on October 15, 1956. While the Senate was in recess, President Eisenhower appointed New Jersey Supreme Court Justice William Brennan Jr. to the Supreme Court as a recess appointment. The prospect of President Obama making a recess appointment is now being viewed as an entirely unprecedented action.

ADDENDUMS:
*Charter School Drops Foreign Language
The Success Academy Charter Schools, encompassing 11,000 students in 34 New York City schools, has dropped foreign language classes. CEO and founder Eva Moskowitz has said that Americans don't do foreign languages well. She is substituting Chess. Given the Hispanic/Latino growth in the U.S., learning Spanish should be a very valuable skill. U.S. foreign language studies lag well behind other countries.

*Wind Power Picks Up Speed
Wind power accounted for a third of all new U.S. energy installations in the  last eight years and now supplies about 5% of the country's total electricity demand. Produced in 43 states, with Texas leading the way, wind energy is capable of churning out 35% of America's energy generation by 2050, while cutting the electricity sector's carbon emissions by 23%, according to a March 2015 Department of Energy report.