When U.S. Supreme Court Justice Antonin Scalia passed away on Feb. 13, he left a vacancy in the Supreme Court for the president to fill. The Obama administration began the nomination process soon after, but due to the presidential election being only months away, the Republican-controlled Senate — led by Senate Majority Leader Mitch McConnell (R-Ky.) — has vowed to reject any nomination President Obama makes. Critics have said that the Senate has a constitutional duty to consider Obama’s nominees. Do you feel it is appropriate for Obama to nominate a new Supreme Court Justice in the last months of his presidency, and what qualities do you hope to see in the next justice?

Prof. Stephen Whitfield (AMST)

In 1916, when Woodrow Wilson nominated Louis D. Brandeis to the Supreme Court, the presidential election year did not impede the Senate from fulfilling its constitutional responsibilities to provide advice and consent.  In 1932, when Herbert Hoover nominated a second Jew, Benjamin N. Cardozo, it happened to be an election year as well; and yet the Senate discharged its duty — and endorsed the president’s choice.  Neither custom nor the Constitution offers the slightest warrant for the refusal of Republicans to consider a nominee whose credentials — indeed whose very identity — has not been revealed.  Nor is President Obama a “lame duck,” a status that applies only between this November and January, 2017.  The Republican insistence that “the people” must be allowed to decide is equally phony, because pollsters report that two out of three Americans want senators to honor their oath of office this year by assessing the president’s candidate.

Prof. Stephen Whitfield (AMST) is a Max Richter Professor of American Civilization.

Joshua Brikman ’16

President Obama is well within his right to nominate whomever he likes to the Supreme Court of the United States. The Constitution reads “Advice and Consent,” and so, too, the senators are within their right to not provide consent. The all-important consent being denied by Republican senators today is no different from the Democrat denials of previous election cycles.  Critics who claim that Republicans ought to consider Obama’s nominees fail to understand this kerfuffle is a feature, not a bug. The American system was designed to be slow and full of competing interests — here is one before us. The next justice ought to be someone who has higher regard for the Constitution than our current president, who currently has an FBI working under him to undermine digital security and an Environmental Protection Agency promulgating regulations outside of their mandate without oversight, to name but two topics that the populace might see a new justice rule in.

Joshua Brikman ’16 is the President of Brandeis Libertarians.

Prof. Daniel Breen (LGLS)

President Obama should certainly feel free to nominate a replacement for Justice Scalia. The president was duly re-elected in 2012, and that is the only mandate he needs to nominate justices as long as his second term lasts. Once he does nominate someone, of course, the Senate is perfectly entitled to delay confirmation hearings, but then the burden would properly be on the Republican Party to explain to the electorate why this is the proper course to take. As far as the qualifications of any such nominee are concerned, it would not be a terrible thing to have someone on the supreme bench with practical experience in crafting legislation. Justice Scalia was an eloquent exponent of the idea that legislative intent should not be considered in interpreting acts of Congress; perhaps the time has come for someone who can defend with similar skill the opposite point of view.

Prof. Daniel Breen (LGLS) is a lecturer in the Legal Studies program.

Mark Gimelstein ’17

To those who say that the GOP-led Senate has a “constitutional duty to consider Obama’s nominees” during the waning months of his lame-duck presidency, which would have decades-long consequences on the trajectory of our nation — you’re wrong. Irrespective of President Obama’s own hypocrisy in attempting to filibuster Justice Samuel Alito’s nomination to the Supreme Court in 2006 (the first half of President Bush’s second term after being re-elected) the Senate has a clear duty to advise and consent to a president’s Supreme Court nominees. As Ted Cruz, presidential candidate and former constitutional lawyer who has argued a multitude of times in front of the Court, has said, “the Senate is advising right now, we are advising that a lame-duck president in an election year is not going to be able to tip the balance of the Supreme Court.” It’s understandable that liberal Democrats don’t like the taste of their own medicine. However, it doesn’t mean that they’re exempt from taking it.

Mark Gimelstein ’17 is a columnist for the Justice. He is also the vice president of Brandeis Conservatives.

Zixuan Xiao ’16

Of course I support President Obama's nomination of someone he deems fit to fill the vacancy in the Supreme Court of the United States not only because this is his constitutional duty but also because nominating Supreme Court Justice in an election season has many precedents. In fact, Louis D. Brandeis himself was appointed as Woodrow Wilson was running for reelection, and as we all know, he was later proven to be one of the most important jurists on the bench in American legal history. Therefore, I think McConnell’s attempt to hinder President Obama is neither legitimate nor wise. For the next Supreme Court Justice, as a liberal, I hope President Obama could resist his temptation to nominate someone who has a strong inclination towards liberal ideology. I even hope he, or the president after him, could find someone who could maintain the balance between the conservatism and liberalism in the Court as we have had in the past decade. Justice Scalia was a conservative, but he was also a great jurist and rhetorician. He was a formidable and respectable opponent for the liberals, and I believe the liberals need someone like him to make themselves better. I hope liberals win, but I don’t like when they win easily. I wish Obama could find someone to keep this great confrontation.

Zixuan Xiao ’16 is an undergraduate departmental representative in the Politics department. He is also Co-Editor-in-Chief for the Brandeis University Law Journal Association.

Prof. Mark Hulliung (POL)

Obviously, it is appropriate for President Obama to nominate someone to fill the vacancy on the Supreme Court. That’s his duty, just as it is the duty of the Senate to consider his nominee. The objections of the Republicans are nakedly political; they are hoping for a Republican president who will nominate another far right judicial activist. Had one of the right-wing justices died during the last several years, the Senate would not have confirmed anyone nominated by Obama. If the next president is a Democrat, a Republican Senate will likely block the nomination. Should one of the liberal justices exit after the election, the Senate will not permit a replacement named by a Democratic president: The Republicans will be pleased to have a four to three majority. Where is Sandra Day O’Connor when you need her, and would she have a chance in today’s poisonous political world?

Prof. Mark Hulliung (POL) is the Richard Koret Professor of the History of Ideas.

Prof. Winston Bowman (HIST)

Neither the Constitution nor historical precedent require a president to forgo his power to nominate successors for nearly a full calendar year; that would be nuts. Although the state of contemporary politics suggests such a nominee would be unlikely to receive a fair hearing in the Senate, I would like to see someone who is not a sitting federal judge and who did not attend one of the four or five most elite — and elitist — law schools. This is not a call for unqualified mediocrities. Some of the most important justices of the twentieth century attended less salubrious law schools. I would argue that none of the five greatest justices in American history was a sitting federal judge when appointed. Though outsider status is no guarantee of success, a nominee fitting my criteria would, at the very least, promote a more diverse intellectual and social makeup on the court.

Prof. Winston Bowman (HIST) is a lecturer in history.