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Republican presidential hopefuls have claimed that President Barack Obama lacks precedent to nominate a judge to the Supreme Court late in his term, rejecting comparisons to former President Ronald Reagan’s late-term appointment of Justice Anthony Kennedy.
Hours after the death of Justice Antonin Scalia, the GOP candidates maintained during a South Carolina debate that Senate Republicans should block or delay Obama’s choice for a replacement. Scalia, lauded by the right for leading a conservative renaissance on the Supreme Court, was found dead Saturday at a Texas resort.
Responding to questions posed by CBS debate host John Dickerson, the candidates insisted that the next president should appoint a new justice instead of Obama.
"I really wish the president would think about not nominating somebody," said Gov. John Kasich, who finished second in the New Hampshire primary. “I think we ought to let the next president of the United States decide who is going to run the Supreme Court with a vote by the people of the United States of America."
Businessman Donald Trump, who came in first, called on Senate Majority Leader Mitch McConnell to stop nominees. "It’s called delay, delay, delay," he said.
"It’s not unprecedented (to wait)," Sen. Marco Rubio said on Saturday. "It’s been over 80 years since a lame-duck president has appointed a Supreme Court justice."
While it was unclear which nomination Rubio was referring to, PolitiFact, which rated Rubio’s claim as “mostly false,” pointed to President Herbert Hoover’s 1932 nomination of Benjamin Cardozo as a possibility. Cardozo went on to be confirmed, but Hoover ultimately lost re-election.
Sen. Ted Cruz also adopted this line of argument, saying, "We have 80 years of precedent of not confirming Supreme Court justices in an election year."
When Dickerson noted that Reagan appointed a Supreme Court justice later in his second term — Kennedy was nominated in November 1987, when Reagan had just over 13 months left in office, and confirmed in February 1988 — his fact check prompted boos from the debate audience. President Obama, meanwhile, has about 11 months left in office.
When asked by "Fox News Sunday" host Chris Wallace about Reagan’s late-term appointment, Rubio doubled down on his debate comments.
"It doesn’t really matter what they’ve done, what Reagan did back in ‘87. It was in ‘87 when he nominated him, so obviously it was still earlier in the year. If this was November, October or September of last year where the president had more than a year left in office, then perhaps this would be a different discussion," Rubio said.
President Reagan nominated Kennedy after his first choice, Robert Bork, was rejected by Senate Democrats in 1987.
Many political figures have weighed in on Scalia’s death and its implications for the 2016 race. The statements reveal a rift among Republicans and Democrats, as well as one between the executive and legislative branches.
Obama, whose second term ends on January 20, 2017, paid tribute to Scalia Saturday evening as a "brilliant legal mind" before announcing his intent to meet his "constitutional responsibilities" and appoint a new justice “in due time."
McConnell, who voted to confirm Kennedy to the Supreme Court in 1988, also released a statement. Following his praise for Scalia’s "fidelity to the Constitution," McConnell stated that “the American people should have a voice in the selection of their next Supreme Court Justice."
On the left, Sen. Elizabeth Warren lambasted this approach. "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."