Supreme Court Justice Antonin Scalia died only Saturday, but with the stop of his pulse came a firestorm of debate over when and under what terms his replacement would be appointed. Senate Majority Leader Mitch McConnell (R-KY) has already threatened to block anyone President Obama proposes, arguing that “it would be undemocratic to seat an Obama nominee in the president’s last year.” But Senator Elizabeth Warren (D-MA) has made clear that McConnell is talking nonsense.

On her official Facebook page, Senator Warren posted the following statement that has since gone viral:

She fires her first shot in the second paragraph: “Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes.”

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As the Huffington Post explains, “Warren, an acclaimed legal scholar, explained...that since the American people re-elected Obama in 2012, his power to nominate a replacement has already been approved by voters.” And as Warren notes, the section of the United States Constitution detailing protocol for appointing Supreme Court justices does not contain a “lame duck” clause prohibiting Obama from appointing a replacement.

Thus, if Senate Republicans were to purposefully obstruct the replacement process, it would reveal “that all the Republican talk about loving the Constitution is just that — empty talk.”

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When McConnell “voted to confirm Supreme Court Justice Anthony Kennedy in 1988, the last year of Reagan’s presidency,” he implicitly agreed with his colleague. But of course he has a political incentive to problematize Obama’s attempt to replace Scalia; the new justice would almost certainly be a far more liberally-minded individual.

In the meantime, GOP presidential candidates eagerly support delaying the process:

According to the New York Times, Ted Cruz, already presuming that the next president will appoint Scalia’s replacement—and, of course, that the next president should be him—warns, “We are just one justice away from the Second Amendment being written out of the Constitution altogether...And if you vote for Donald Trump in this next election, you are voting for undermining our Second Amendment right to keep and bear arms.”

Cruz argues that it would be a disservice to the American people to allow a lame duck president appoint Scalia’s replacement, drawing on that nonexistent lame duck clause to which Warren refers in her post. From the Times:

“‘You know what? The Senate is advising right now,’ he said on NBC’s ‘Meet the Press.’ ‘We’re advising that a lame-duck president in an election year is not going to be able to tip the balance of the Supreme Court, that we’re going to have an election.’”

These competing interpretations of justice will no doubt make an already agitated election year even more frenzied.


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