Peter Johnson Jr. claims the president isn't interested in appointing Scalia's replacement, he just wants the 'political fight.'

February 17, 2016

Peter Johnson Jr., Fox 'News' legal analyst, is seeing the folly in the Republicans' initial reaction towards replacing Justice Scalia. He woefully admits that yes, President Obama is still president, like it or not, and he has every right to fulfill his duties of appointing a nominee for the ninth seat on the court. The idea of the Senate simply refusing to hold hearings or vote on a nominee is obstructionist suicide, especially at a time when a gridlocked Congress isn't exactly popular among voters.

Yesterday, at a press conference in Rancho Mirage, California, President Obama was pelted with questions regarding his plans to fill this slot on the Supreme Court. The folks at GOP-TV think the president is incapable of being serious. It's as if the task of replacing Justice Scalia is not a presidential responsibility, but a chance for President Obama to gloat. They transfer their own childish whims upon a man that has no time for their games. Yesterday, the president said,

I'm amused when I hear people who claim to be strict interpreters of the Constitution, suddenly reading into it a whole series of provisions that are not there. Part of the problem that we have here is we've almost gotten accustomed to how obstructionist the Senate's become when it comes to nominations.

Johnson Jr. tries to justify the anger on the right. He claims that

a lot of Republican voters are saying, we're sick of the unconstitutional governance of Barack Obama.

It's odd that we've yet to hear a single specific instance of this alleged lack of constitutionality. But Johnson puts that statement out there to lend credence to the obstructionism of the Republican Party. They feel it has been a justifiable alternative to fulfilling their duties with regards to this twice elected president. Now people are beginning to take note and it's not to their advantage to be this obstinate in an election year.

Fox's legal expert is essentially imploring Republicans to behave themselves and act like adults. However, he has to get in a few digs on President Obama, claiming that he should have made a recess appointment to avoid the ensuing conflict, but this too would be met with vehement opposition and calls of tyranny.

The presidential authority at issue in this possible scenario exists, according to Article II, when the Senate has gone into recess and the vacancy a president seeks to fill remains. Such an appointment requires no action at all by the Senate, but the appointee can only serve until the end of the following Senate session. The president (if still in office) can then try again during a new Senate session, by making a new nomination, and that must be reviewed by the Senate.

The bottom line is that, if President Obama is to successfully name a new Supreme Court Justice, he will have to run the gauntlet of the Republican-controlled Senate, and prevail there. The only real chance of that: if he picks a nominee so universally admired that it would be too embarrassing for the Senate not to respond.

Because President Obama did not choose this option, and opted for the traditional process, Johnson assumes his intentions are purely malevolent.

He said, well, in due time, I'm going to pick somebody, and we're going to have a political fight and I'm going to enjoy it. He enjoyed that press conference yesterday.

Simply because Republicans act with spiteful vitriol, they assume everyone else operates in the same manner. Their projection of their own personal shortcomings tells us a lot about the kind of people they are.

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