Article II of the U.S. Constitution provides that the President shall appoint the members of the Supreme Court. This is without qualification. The Constitution does not provide that the President shall not appoint members of the Court during a year preceding an election. When the President nominates a person to take the place of Scalia, the President will be exercising his duties according to the strict reading or interpretation of the Constitution. Now if the Republicans in majority choose to vote down the person nominated, that would be their choice.