By now everyone knows that Supreme Court Justice Antonin Scalia died yesterday. Before the body was cold Republicans were publicly saying that Obama should not nominate a successor, and that any such nomination should be blocked. The justification, of course, is that it is so close to the election that we should let the next president (and "the American people") decide. A couple of thoughts on this:
First, it is definitely not up to the American people to choose the next Supreme Court justice. That is a job the Constitution clearly and explicitly gives to the president, with the "advice and consent" of the Senate, said advice and consent consisting of the confirmation process. We don't vote for Supreme Court justices. Nor should we. Voting for judges is generally a bad idea.
The real reason Republicans don't want Obama to name a new justice, of course, is because they are afraid he will nominate a "liberal" justice who will tip the balance of power in the high court for years to come (although maybe not; Ruth Bader Ginsberg is 82, after all). That's a shame, but elections have consequences. As much as they hate it, Obama is still president. It is not only his right to name a successor, it his his constitutional duty.
Interestingly, all of this has happened before. Almost exactly 100 years ago, in fact. On January 2nd, 1916, Supreme Court Justice Joseph Rucker Lamar died. On January 28th President Woodrow Wilson nominated Louis Brandeis to replace him. Just like today, the opposition objected on the grounds that it was an election year. But they objected even more loudly on the grounds that Brandeis was a Jew. After an ugly fight that dragged on for months, Brandeis was finally confirmed on June 1, 1916.
Supreme Court justices have an annoying habit of not vacating their seats in election years. In the 20th century it has happened only four times: the incident described above, another vacancy in 1916 (a resignation this time), a resignation in 1932, and Chief Justice Earl Warren's retirement, originally planned for June 1968.
This last incident has been brought up in regard to the Scalia vacancy, with Ted Cruz and others rightly stating that Lyndon Johnson's nomination to fill the seat was not upheld. But that year was a bit different, in that it was political from the beginning. Earl Warren, fearing that Nixon would be elected, tried to cut a "retirement deal" with LBJ. Johnson nominated Justice Abe Fortas to replace Warren as Chief Justice, and Homer Thornberry to fill Fortas' thus vacated seat. The Senate, which was in Democratic hands but not particularly happy with the Johnson administration at that point (Johnson was also a Democrat), sat on the nomination and let it expire. Earl warren delayed his retirement, and the vacancy ended up being filled by Nixon. This scenario is essentially what Republicans would like to see happen this time. They could get their wish.