# From a legal POV, can the republicans just leave the supreme court seat vacant until 2021+ **URL:** \ **Category:** Factual Questions\ **Created:** [February 24, 2016, 4:28am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950 "2016-02-24T04:28:42Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [February 24, 2016, 4:28am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/1 "2016-02-24T04:28:42Z")
Lets say they hold steadfast to their idea that we should wait until the next election (which is code for lets wait until we have a republican president) and Hillary or Bernie wins in 2016. Can republicans just leave that supreme court seat vacant for the next 5 years, and try to wait it out until 2021 hoping they have a republican president in 2021? I’m not saying they will, I’m saying is there anything that would prohibit them from doing it other than cultural pushback? Is there anything in the constitution that sets a time limit until a judge has to be appointed? Or can judge positions go unfulfilled for years/decades? Does it matter what position (district court, appellate, supreme court)? ---
**Author:** ![zombywoof](https://avatars.discourse-cdn.com/v4/letter/z/9e8a1a/32.png) [@zombywoof](https://boards.straightdope.com/u/zombywoof)\ **Post date:** [February 24, 2016, 4:48am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/2 "2016-02-24T04:48:13Z")
I don’t think there are any time limits - according to [this site](http://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies) there are 81 vacancies in the Federal Judiciary right now. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [February 24, 2016, 4:50am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/3 "2016-02-24T04:50:07Z")
Assuming that the Republicans retain control of the Senate for that long, yes, there is nothing stopping from refusing to confirm any Supreme Court appointments other than political pressure. The only thing they’d have to do is keep the Senate in session by having a couple of Senators show up every three days to have a perfunctory session. If the Senate goes out of session, the President would have the opportunity to make a recess appointment, which doesn’t require Senate approval, but which appointment only lasts until the end of the next Senate session. Certainly lower court positions have been held up for in excess of a year or more based on political wrangling. However, the political pressure on the Senate to confirm a reasonable Supreme Court nominee of the next elected President would be extremely high. Nobody cares that much if some district judge nominee or another is held up in a political kerfuffle. However, the Supreme Court is big game, and if Senators from one party were seen to be that nakedly obstructionist to a newly-elected president, many of them would be hard-pressed to defend their seats at the next election. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 24, 2016, 4:53am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/4 "2016-02-24T04:53:33Z")
One issue is future deaths or retirements. There have to be six justices to form a quorum. So if there were three more vacancies, the Supreme Court would effectively cease to exist. ---
**Author:** ![Wesley\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wesley_clark/32/20581_2.png) [@Wesley\_Clark](https://boards.straightdope.com/u/Wesley_Clark)\ **Post date:** [February 24, 2016, 5:09am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/5 "2016-02-24T05:09:31Z")
Recess appointments can be used for supreme court judges? ---
**Author:** ![boytyperanma](https://avatars.discourse-cdn.com/v4/letter/b/4491bb/32.png) [@boytyperanma](https://boards.straightdope.com/u/boytyperanma)\ **Post date:** [February 24, 2016, 5:11am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/6 "2016-02-24T05:11:50Z")
So long as they control the Senate they can bring the government to a grinding halt. It’s certainly within their power to refuse to confirm Justices. It’s probably not a good long term strategy as it would be rather hard to maintain control of the Senate while refusing to do their jobs. ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [February 24, 2016, 5:47am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/7 "2016-02-24T05:47:35Z")
> [@Wesley\_Clark](#): > > Recess appointments can be used for supreme court judges? Yes. Supreme Court justices don’t have a special appointment process. The rules are exactly the same for appointing them as for district court judges. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [February 24, 2016, 5:48am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/8 "2016-02-24T05:48:55Z")
> [@Wesley\_Clark](#): > > Recess appointments can be used for supreme court judges? Recess appointments can be used for any presidential appointee requiring the advice and consent of the Senate. Justice Brennan was recess-appointed to the Supreme Court by President Eisenhower (later confirmed for a permanent appointment.) I believe that was the last recess appointment to the Supreme Court. ---
**Author:** ![desertmonk](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@desertmonk](https://boards.straightdope.com/u/desertmonk)\ **Post date:** [February 24, 2016, 1:27pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/9 "2016-02-24T13:27:05Z")
> [@Little\_Nemo](#): > > One issue is future deaths or retirements. There have to be six justices to form a quorum. So if there were three more vacancies, the Supreme Court would effectively cease to exist. Following up on this, can the Justices (or a subset of them) refuse to meet? ---
**Author:** ![ElderSign](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eldersign/32/8263_2.png) [@ElderSign](https://boards.straightdope.com/u/ElderSign)\ **Post date:** [February 24, 2016, 1:50pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/10 "2016-02-24T13:50:29Z")
After the anti-abortionist Bork was rejected, Reagan picked the liberal Kennedy and he was nominated with no objections. I believe the government (sans Ted Cruz) likes to keep the illusion of control and stability. ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [February 24, 2016, 1:53pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/11 "2016-02-24T13:53:17Z")
As far as I know they can delay indefinitely. And where does it say that a quorum is 6? That is certainly not in the constitution and, if it is a statute, it can be ruled unconstitutional. Or is it a rule of the court itelf? In that case it could be changed by the court. The constitution allows congress to change the size of the court and also gives it some control over the jurisdiction. Even a Democratic senate could fail to confirm judges as a result of continuous filibuster. It could result in the end of the filibuster. As I understand it, all that would take would be a simple vote every time a new senate opens in January of every odd numbered year. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 24, 2016, 3:17pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/12 "2016-02-24T15:17:19Z")
> [@ElderSign](#): > > After the anti-abortionist Bork was rejected, Reagan picked the liberal Kennedy and he was nominated with no objections. I believe the government (sans Ted Cruz) likes to keep the illusion of control and stability. Kennedy was (and is) by no means a liberal. At the time of his appointment he was seen as a moderate, and after the Bork fiasco Reagan needed somebody who could not be criticized as an ideologue. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [February 24, 2016, 3:29pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/13 "2016-02-24T15:29:34Z")
> [@boytyperanma](#): > > So long as they control the Senate they can bring the government to a grinding halt. It’s certainly within their power to refuse to confirm Justices. > > It’s probably not a good long term strategy as it would be rather hard to maintain control of the Senate while refusing to do their jobs. Not wanting to hijack into politics, but a non-trivial segment of the voters does view preventing the wrong kind of justices as exactly part of the senate’s job. My point being “refusing to do their jobs” assumes there is a universally accepted definition of what their job is. It’s plainly evident there’s not such universal acceptance. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 24, 2016, 4:50pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/14 "2016-02-24T16:50:02Z")
> [@Hari\_Seldon](#): > > As far as I know they can delay indefinitely. And where does it say that a quorum is 6? That is certainly not in the constitution and, if it is a statute, it can be ruled unconstitutional. Or is it a rule of the court itelf? In that case it could be changed by the court. It can be changed, but [it is the current rule.](https://www.law.cornell.edu/uscode/text/28/1) > [@](#): > > The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. The rules are[laid out here](https://www.law.cornell.edu/rules/supct). This is from Rule 4. ---
**Author:** ![dougie\_monty](https://avatars.discourse-cdn.com/v4/letter/d/439d5e/32.png) [@dougie\_monty](https://boards.straightdope.com/u/dougie_monty)\ **Post date:** [February 24, 2016, 5:30pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/15 "2016-02-24T17:30:32Z")
> [@LSLGuy](#): > > Not wanting to hijack into politics, but a non-trivial segment of the voters does view preventing the wrong kind of justices as exactly part of the senate’s job. > > My point being “refusing to do their jobs” assumes there is a universally accepted definition of what their job is. It’s plainly evident there’s not such universal acceptance. I wonder if someone can refuse to pay them if they do that? ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 24, 2016, 6:25pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/16 "2016-02-24T18:25:41Z")
> [@dougie\_monty](#): > > I wonder if someone can refuse to pay them if they do that? That would be unconstitutional. At lease before the election. > [@27th Amendment to US Constitution](#): > > No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. ---
**Author:** ![Folacin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/folacin/32/3195_2.png) [@Folacin](https://boards.straightdope.com/u/Folacin)\ **Post date:** [February 24, 2016, 6:33pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/17 "2016-02-24T18:33:11Z")
> [@Hari\_Seldon](#): > > Even a Democratic senate could fail to confirm judges as a result of continuous filibuster. It could result in the end of the filibuster. As I understand it, all that would take would be a simple vote every time a new senate opens in January of every odd numbered year. I don’t think ‘every time’. I think the senate does a pro-forma adoption of current rules every session - so once the filibuster for SCOTUS was removed from the rules, it would need to be specifically added back in. ---
**Author:** ![dougie\_monty](https://avatars.discourse-cdn.com/v4/letter/d/439d5e/32.png) [@dougie\_monty](https://boards.straightdope.com/u/dougie_monty)\ **Post date:** [February 24, 2016, 6:37pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/18 "2016-02-24T18:37:11Z")
> [@Iggy](#): > > That would be unconstitutional. At lease before the election. I can’t help but think that those senators’ politically-motivated inaction is unconstitutional. I hope their constituents tell them so. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 24, 2016, 6:40pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/19 "2016-02-24T18:40:25Z")
It’s not unconstitutional. The Constitution doesn’t oblige them to vote on the issue. I think it’s bad policy and that their constituents should tell them so, but it’s not illegal. ---
**Author:** ![muttrox](https://avatars.discourse-cdn.com/v4/letter/m/a8b319/32.png) [@muttrox](https://boards.straightdope.com/u/muttrox)\ **Post date:** [February 24, 2016, 6:59pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/20 "2016-02-24T18:59:49Z")
It is not a violation of law. It’s a violation of accepted norms, a very different beast. [Next page](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950.md?page=2)