A distinguished group of legal scholars, political scientists and presidential historians (including me) from across the political spectrum has written to President Obama to affirm that if the Senate Republicans carry through on their threat to deny the President's Supreme Court nominee a fair confirmation hearing they will be acting in a manner that is both unprecedented and unconstitutional:

Dear Mr. President:

We write to you as scholars of American history, politics, and the law. We express our dismay at the unprecedented breach of norms by the Senate majority in refusing to consider a nomination for the Supreme Court made by a president with 11 months to serve in the position. We believe the idea that a "lame duck" president should not submit a nominee when there is a vacancy on the highest court in the land is a novel and absurd notion, as is the claim that for 80 years or more, no Supreme Court vacancy occurring in an election year has been filled before the election.

In fact it is standard practice when a vacancy occurs on the Supreme Court to have a president, whatever the stage in his term, to nominate a successor and have the Senate consider it. And standard practice (with limited exception) has been for the Senate, after hearings and deliberation, to confirm the president's choice, regardless of party control, when that choice is deemed acceptable to a Senate majority. The most recent example, of course, is Justice Anthony Kennedy, confirmed by a Senate with a Democratic Party majority in February of 1988, during President Ronald Reagan's last year. It is true that Kennedy was nominated in November, 1987, but that is irrelevant--and, of course, the Senate commendably expedited the time between nomination and confirmation despite the election ahead.

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