Associate Justice Anthony Scalia, age 79, died in his sleep Saturday night.  Justice Scalia was considered, perhaps, the most conservative member of the U. S. Supreme Court, and its greatest legal scholar.  His fairness, in pursuit of judicial excellence, however, was demonstrated by his suggesting that Elena Kagan, a liberal, be considered for nomination to the High Court.

First thing Sunday morning, once the news of his death was made public, virtually all segments of the Republican Party were proclaiming that President Barack Obama is a lame duck, and declaring that he should leave the appointment of a replacement Associate Justice for the next President.  The Presidential Election, by the way, will not be held until November 8; however, and thus President Obama’s term still has eleven months to go—expiring on January 20, 2017.

Until then, Barack Obama has a Constitutional duty to nominate another Justice to the Court and, likewise, the Senate also has a similar duty to consider the candidate, and Confirm or Reject him or her.  Until the Senate can place their political partisanship aside, and give any nominee fair consideration, the Court might be deadlocked, with a four-to-four, Conservative to Liberal split, for some time to come.  Also, such gridlock would not make Chief Justice John Roberts’ goal, to eliminate politics from the Court, any easier.

Charles P. Pierce’s column, in Esquire magazine, provides some historical perspective.  It points out that a President is not a lame duck until his replacement is actually elected.  Therefore, that status would only last for two and a half months.  Mr. Pierce’s column is linked, as follows:

Every one of the current field of Republican Presidential candidates claims to be a Ronald Reagan Conservative.  As GOP Elder, Bob Dole, cited after an earlier debate, they say Conservative many more times than they do Republican.  The GOP apparently choses to forget that President Reagan appointed Associate Justice Anthony Kennedy during his last year in office, and he certainly was not the first.

By far, the most influential nomination to the Supreme Court was made by our second President, John Adams, after he had already lost the 1800 Presidential Election, which ran from October 31 until December 6.  So, Adams was indeed a lame duck, until Thomas Jefferson’s Inauguration, on March 4.  During that lame duck period, President Adams made, perhaps, the most influential Supreme Court nomination ever.

On January 20, 1801, President Adams offered the Chief Justice position to John Marshall, whom accepted it immediately.  The lame duck Congress confirmed the nomination on January 27, and Marshall was sworn in on February 4.  Chief Justice John Marshall presided over the Supreme Court for 34 years, leaving an important and lasting imprint on it.



  1. #1 by maxcat07 on February 17, 2016 - 7:35 PM

    True, to the point, and might I add that I love Charlie Pierce??

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