Does Precedent Block Obama from Filling Supreme Court's Vacancy?

President Barack Obama has vowed he will seek to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia, charging head on into a heated election-year fight with Republicans who say the choice should be left to his successor.

On Saturday night, Obama said a nomination was "bigger than any one party."

The battle is over whether a high court nomination will see the light of day in the Senate during an election year. A Republican majority might stand in its way, but precedent does not. Amy Howe at Scotusblog lists several nominations and confirmations of justices during presidential election years in the last century:

"The first nomination during an election year in the twentieth century came on March 13, 1912, when President William Taft (a Republican) nominated Mahlon Pitney to succeed John Marshall Harlan, who died on October 14, 1911. The Republican-controlled Senate confirmed Pitney on March 18, 1912, by a vote of fifty to twenty-six," Howe writes.

"President Woodrow Wilson (a Democrat) made two nominations during 1916. On January 28, 1916, Wilson nominated Louis Brandeis to replace Joseph Lamar Rucker, who died on January 2, 1916; the Democratic-controlled Senate confirmed Brandeis on June 1, 1916, by a vote of forty-seven to twenty-two," she writes.

"Charles Evans Hughes resigned from the Court on June 10, 1916 to run (unsuccessfully) for president as a Republican. On July 14, 1916, Wilson nominated John Clarke to replace him; Clarke was confirmed unanimously ten days later," she continued.

"On February 15, 1932, President Herbert Hoover (a Republican) nominated Benjamin Cardozo to succeed Oliver Wendell Holmes, who retired on January 12, 1932. A Republican-controlled Senate confirmed Cardozo by a unanimous voice vote on February 24, 1932. On January 4, 1940, President Franklin Roosevelt (a Democrat) nominated Frank Murphy to replace Pierce Butler, who died on November 16, 1939; Murphy was confirmed by a heavily Democratic Senate on January 16, 1940, by a voice vote," she said.

"On November 30, 1987, President Ronald Reagan (a Republican) nominated Justice Anthony Kennedy to fill the vacancy created by the retirement of Louis Powell. A Democratic-controlled Senate confirmed Kennedy (who followed Robert Bork and Douglas Ginsburg as nominees for that slot) on February 3, 1988, by a vote of ninety-seven to zero," Howe wrote.

Democrats in Senate passed a resolution in 1960 against election-year Supreme Court appointments when Republican Dwight Eisenhower was president.

"I think Obama is going to put somebody up. But I think the Senate Judiciary Committee just has to say no," Jay Sekulow, chief counsel for the American Center for Law and Justice, said Monday on The 700 Club. "Sure the president has the right to nominate but the Senate has the right to advise and consent."

"This vacancy should not be filled until we have a new president," Majority Leader Mitch McConnell, R-Ky., said.

"Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice," Sen. Elizabeth Warren, D-Mass., wrote on Facebook. "In fact, they did - when President Obama won the 2012 election by five million votes."