The Republican presidential candidates have all been offering up various rationalizations for why President Obama should refrain from nominating a new Supreme Court justice to replace the late Antonin Scalia or why the Senate should at least reject his pick. But during Saturday night’s debate, Marco Rubio in particular offered up a line that seems destined to be repeated, if only because it sounds vaguely like a statistic. “I do not believe the president should appoint someone,” he said. “It’s been over 80 years since a lame-duck president has appointed a Supreme Court justice.”
Here, Rubio seems to be suggesting that allowing Obama to appoint a justice would be a break with history. This is nonsense. President Obama is not a “lame duck” in the original sense of the phrase, which refers to a president filling out his last, not-so-influential days in office after his successor has already been elected. Journalists sometimes ask if the Republican hold over Congress has turned Obama into a de facto lame duck. But in the end, he’s a second-term president, facing an opposition-controlled Senate in an election year.
You know which other second-term president got a Supreme Court justice confirmed during an election year while an opposition party controlled the Senate? Ronald Reagan, who nominated Justice Anthony Kennedy in 1987 after his previous pick, Robert Bork, was rejected. Kennedy was confirmed by a vote of 97 to 0 in February of 1988.
In contrast to Rubio, Donald Trump deserves some points for honesty. “I think [Obama] is going to do it whether I’m OK with it or not,” he said during Saturday’s debate. “It’s up to Mitch McConnell and everybody else to stop it. It’s called delay, delay, delay.”