Okay, what if the president & senate are in cahoots and just start nominating and confirming without changing the statute…presumably the other side would bring a lawsuit against it but it would end up in the Supreme court, would these badly nominated justices be on the court and who, if anyone, could make that decision? The Chief Justice?
But couldn’t the rule be repealed? Say the Dems take the Senate in the midterms and for whatever reason Trump’s nominee has not been confirmed by then. On January 3, the Dems enact the following:
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Senate Rule XXXI is hereby repealed. Nominations last until doomsday.
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Merrick Garland is hereby confirmed as an Associate Justice of the Supreme Court
Legal?
I think not legal. Not because the rule can’t be repealed (of course it can). But because Garland’s nomination has already been returned under the rule. There is no pending Garland nomination. I would think the same would be true if we established the involuntary consent rule (failure to promptly reject a nominee = consent), every judicial appointee that was blocked doesn’t suddenly become confirmed.
(Also, Garland was nominated vice Scalia. But I don’t think that matters the way it seems to in the Court of Appeals where there is clearly a succession by seat.)
Edit:
I don’t think any supreme court nominee has been returned under Rule XXXI and renominated. (Obviously, John Robert’s nomination was withdrawn and resubmitted). It is fairly common for lower court judges to have their nominations returned and then to be renominated.
The president could nominate up to nine under current law.
It happens by convention. It’s less embarrassing than the Senate declining to confirm your nomination.
Chief Justice Roberts was nominated first to be an associate justice and then renominated to be chief justice but both happened during the same Senate term. I think some district and appellate court judges have been renominated in different Senate terms but I’m not certain.
Nomination -> Confirmation -> Appointment. Once confirmed, he still has to be appointed by the president. Trump isn’t going to appoint Garland.
Yes. This is an issue in one of the Tom Clancy novels, when an attack on the Capitol during a State of the Union Address wipes out the Supreme Court (unlikely these days, as typically only a few justices attend SOTUs). The new President asks DOJ to submit a list of possible justices to him, instructing them to (a) limit the list to current Federal judges and (b) ensure geographic (but not ideological) diversity.
President Washington nominated John Rutledge as an associate justice, and he was confirmed; he later left the bench. Washington then renominated him, this time as Chief Justice. The President also made a recess appointment of Rutledge, but the Senate voted not to confirm him (long story).
President Jackson nominated Roger Taney as an associate justice, but the Senate took no action on the nomination. Jackson renominated him almost a year later to the Chief Justiceship, to which he was confirmed. Zany Dred Scott nuttiness ensued.
President Tyler twice nominated Edward King to the court, but it was tabled both times by the Senate, and he was never confirmed. Tyler also nominated Reuben H. Walworth three times (!), but the Senate never even held a vote.
President Taft nominated Charles Evans Hughes as an associate justice, and he was confirmed. He left the Court to run for President in 1916, but lost; he later served in the Cabinet. President Harding then nominated him as Chief Justice of the United States, and he was confirmed.
Chief Justice Roberts has already been mentioned. There may be others, but I think that’s it for SCOTUS.
That’s never happened. A lawsuit about something like that would start in a U.S. District Court, but might be fast-tracked to the Supreme Court. There would be complications like whether it was a political question and whether whoever filed the lawsuit had standing to do so. The Chief Justice would not himself or herself decide the case, if it went that far; the entire court (presumably just the nine authorized by statute) would vote.
I agree, but who would vote to decide that it was a political question? Would the allegedly improper nominees be sitting at the bench? Have offices in the Court? Be in the picture taken at the start of the term?
I think if we got that far, the Constitutional structure would already be defeated.
If the Senate and President overstep their constitutional authority, and there is no Supreme Court to review them, then it’s up to the people to act. They’ll have to vote for different people in the next election. Or directly act by marching down to Washington and stringing up traitors from lampposts.
The law is only the law if people agree to act as if it is the law. If they stop acting as if it is the law then it’s up to everyone else to make them act that way. And then we see who is stronger–the people trying to force the violators to obey the law, or the people violating the law.
All the time. It’s routine since, according to Senate rules, nominations expire every January. 21 judicial nominees were renominated this January.
I think Samuel Alito might have been. He was nominated in November but not confirmed until late January.
Looks like it was just one nomination even though it started and ended in different sessions. (Here is what it looks like when a nomination is returned and then resubmitted.)