Senator Warren said in a statement,

“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.”

She reminded Mitch McConnell, he of the Party that claims to be strict Constitutionalists,

“Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says ‘…except when there’s a year left in the term of a Democratic President.’
Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that – empty talk.”

Meanwhile, Marco Rubio claimed at the most recent Republican debate,

“I do not believe the president should appoint someone. And it’s not unprecedented. In fact, it has been over 80 years since a lame-duck president has appointed a Supreme Court justice.”

The first thing to consider is that until the presidential election in November, President Obama is not by definition or precedent a lame duck president.

The second thing to consider is that a president does not appoint a Supreme Court Justice. A president nominates someone, and the Senate makes the appointment, if they choose to.

Rubio’s recollection of history is off, or at last his subtraction is, as the Senate confirmed Kennedy 97-0 on Feb. 4, 1988 only about 28 years ago, and Reagan, who was in his second term, nominated Kennedy in November 1987.

So, even if a person insists on the second definition of “lame duck” as any office holder in a second and final term, that would include Saint Ronald Reagan.

“The nomination actually wasn’t in the election year, although the confirmation vote was,” as explained by Harvard law professor Mark Tushnet.
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Things got even more questionable for the Republican justification for a new act of obstructionism when Raphael Eduardo Cruz said moments later in the same debate,

“We have 80 years of precedent of not confirming Supreme Court justices in an election year.”

Notice he did not say “nomination” in an election year, but “confirmation”.

So, whether you go with Rubio saying,“It has been over 80 years since a lame-duck president appointed a Supreme Court justice”, or anointed by God Cruz’s claim, “We have 80 years of precedent of not confirming Supreme Court justices in an election year”, Ronald Reagan, who was in his final year, was a lame duck whose nominee was confirmed in his last year.

Or is there some ever shifting criteria that applies to one president and not another.

One of these two, Rubio or Cruz, seems to be a little confused.

Reagan was, and Obama is, a second-term president who knew he would not serve again but did not yet know who his successor would be.

Obviously the intention of the GOP is to hope that one of theirs gets elected in November to keep the Supreme Court Conservative because it would somehow be against the Constitution if it were to become Liberal.

And, as was pointed out by Republicans at the recent debate that some of them simply make things up, that is the approach they have decided to take with the American people to fool the foolable into thinking obstruction is the American way.

And what would Justice Scalia have to say about the circus that is about to begin?

From 2010:

“I am not happy about the intrusion of politics into the judicial appointment process. As long as [the constitution] is subject to revision, you should get used to controversial and absurd political theater when a person is nominated.”