# 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:** 3
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [February 25, 2016, 6:05am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/41 "2016-02-25T06:05:25Z")
> [@kaylasdad99](#): > > That’s too much work for me. I’d just as soon stick with obtaining the equivalent result by endorsing the view that a minimal qualification for “the right kind of President” is that he or she does not belong to the opposite party. You can do that; you’re a voter. Helping to choose the president is your job. But deciding who shall be president is not a senator’s job, except in fairly limited circumstances. And having a hissy-fit because you wish the people hadn’t chosen the current president, and deciding that you’ll behave as if they actually didn’t, is somewhere between childish and anti-democratic. **The Solution** _After the uprising of the 17th of June The Secretary of the Writers’ Union Had leaflets distributed in the Stalinallee Stating that the people Had forfeited the confidence of the government And could win it back only By redoubled efforts. Would it not be easier In that case for the government To dissolve the people And elect another?_ - Bertoldt Brecht. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [February 25, 2016, 6:28am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/42 "2016-02-25T06:28:23Z")
> [@md2000](#): > > But the point is the people who don’t want a particular inclination of judge are already going to vote republican- so that’s preaching to the choir. In an election, the trick is to persuade the majority of the approximately 20% swing voters in the middle to vote your way. Those are the ones the republicans have to persuade that obstructionism is valid, and those are the ones who don’t feel deeply that stacking is more important than doing their duty in a reasonable time. But the first step, before the 20% swing voters get to swing, is to win the primary. That’s where the hard core Republicans call the shots. And rest assured that your opponent in the Republican primary is going to run ads saying “Senator Smith. He supported Barack Hussein Obama’s radical policy to change America by letting the him pack the Supreme Court with his cronies.” And also consider that while 20% of the country as a whole might consist of centrist swing voters, in deep red states that is not the case, and senators are elected on a state-by-state basis. ---
**Author:** ![Biffy\_the\_Elephant\_Shrew](https://avatars.discourse-cdn.com/v4/letter/b/e47c2d/32.png) [@Biffy\_the\_Elephant\_Shrew](https://boards.straightdope.com/u/Biffy_the_Elephant_Shrew)\ **Post date:** [February 25, 2016, 6:45am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/43 "2016-02-25T06:45:06Z")
> [@UDS](#): > > Had leaflets distributed in the Stalinallee Is that anywhere near the Bolinallee? ---
**Author:** ![psychonaut](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/psychonaut/32/4655_2.png) [@psychonaut](https://boards.straightdope.com/u/psychonaut)\ **Post date:** [February 25, 2016, 10:00am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/44 "2016-02-25T10:00:40Z")
> [@Billdo](#): > > 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. What’s to stop three Democrat senators from showing up to the session and outvoting them? ---
**Author:** ![dtilque](https://avatars.discourse-cdn.com/v4/letter/d/d6d6ee/32.png) [@dtilque](https://boards.straightdope.com/u/dtilque)\ **Post date:** [February 25, 2016, 11:13am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/45 "2016-02-25T11:13:56Z")
> [@psychonaut](#): > > What’s to stop three Democrat senators from showing up to the session and outvoting them? I’m not an expert on Senate parliamentary rules, but my guess is that the presiding officer could ignore their motion to adjourn and just declare the recess as usual. ---
**Author:** ![SmartAlecCat](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SmartAlecCat](https://boards.straightdope.com/u/SmartAlecCat)\ **Post date:** [February 25, 2016, 11:46am UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/46 "2016-02-25T11:46:44Z")
> [@psychonaut](#): > > What’s to stop three Democrat senators from showing up to the session and outvoting them? They don’t control the agenda of what is considered and voted on. ---
**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 25, 2016, 2:41pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/47 "2016-02-25T14:41:19Z")
And they wouldn’t have a quorum. ---
**Author:** ![Alan\_Smithee](https://avatars.discourse-cdn.com/v4/letter/a/2acd7d/32.png) [@Alan\_Smithee](https://boards.straightdope.com/u/Alan_Smithee)\ **Post date:** [February 25, 2016, 3:10pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/48 "2016-02-25T15:10:20Z")
One factor to consider if they really make this a long term strategy is that it diminishes the power and prestige of the Supreme Court, which would give the justices themselves unusual stake in preventing it. I don’t think they would go so far as to rule the strategy unconstitutional, when (as the consensus here shows) it pretty clearly isn’t. But I could see at least some of the judges deciding that it is worth sacrificing their traditional facade of political neutrality and silence in order to publicly condemn the senate, which would put enormous political pressure on senators. I could even see a conservative justice or two threatening to retire and give the SC a liberal majority until the situation is resolved (though they wouldn’t likely put it that forthrightly). ---
**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 25, 2016, 3:13pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/49 "2016-02-25T15:13:39Z")
Most SCOTUS conservatives would be perfectly happy to see the power of the Supreme Court reduced. There are certainly exceptions, but the Court has historically functioned as a a check on conservative legislation far more than liberal legislation. ---
**Author:** ![sbunny8](https://avatars.discourse-cdn.com/v4/letter/s/c77e96/32.png) [@sbunny8](https://boards.straightdope.com/u/sbunny8)\ **Post date:** [February 25, 2016, 4:16pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/50 "2016-02-25T16:16:24Z")
> [@UDS](#): > > No, it’s not. You can’t possibly form any view as to whether a nominee is “the right type of justice” if you fail to consider the nominee at all. And a refusal to consider _any_ nominee from a particular president expresses a stance on the president, not a stance on the nominees. > > A Senate which systematically fails to consider nominations submitted to it by the President is analogous to a court which systematically fails to consider the cases that come before it. Neither of them is doing their job. That’s a good point. There’s a big difference between listening to the evidence to make a decision vs announcing ahead of time that what your decision will be before you’ve even heard the evidence. Getting back to the OP, the only legal remedies I can think of to get the vacancy filled despite having an obstructionist Senate are (1) recess appointment (which may or may not work, and is only a temporary solution) or (2) recall or impeachment of the Senators who are obstructing, or (3) a lawsuit of some kind (Obama v McConnell? United States v GOP?) which would almost certainly lose because there’s ample precedent for obstructionist having gotten away with it in the past. ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [February 25, 2016, 4:36pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/51 "2016-02-25T16:36:35Z")
> [@sbunny8](#): > > (2) **recall** or impeachment of the Senators who are obstructing I don’t think that there is any provision in the Constitution allowing the recall of U.S. Senators. If I am incorrect about that, I’m sure someone will be along to set the record straight. ---
**Author:** ![AskNott](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asknott/32/5790_2.png) [@AskNott](https://boards.straightdope.com/u/AskNott)\ **Post date:** [February 25, 2016, 5:02pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/52 "2016-02-25T17:02:06Z")
> [@dtilque](#): > > I’m not an expert on Senate parliamentary rules, but my guess is that the presiding officer could ignore their motion to adjourn and just declare the recess as usual. That’s exactly what happened last time the Senate had a sham session to prevent the president from making any recess appointments. Three times a week, the Senate would officially open for the day. Ignoring the yelling for “point of order” from the opposition, the President Pro Tem closed the day’s session for the day a few seconds later. Technically, a point of order cannot be ignored, but that’s what happened. ---
**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 25, 2016, 5:14pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/53 "2016-02-25T17:14:40Z")
> [@D\_Anconia](#): > > I don’t think that there is any provision in the Constitution allowing the recall of U.S. Senators. > > If I am incorrect about that, I’m sure someone will be along to set the record straight. The Constitution only provides for Senators and Representatives to be expelled–Article I. ---
**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 25, 2016, 5:38pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/54 "2016-02-25T17:38:05Z")
> [@D\_Anconia](#): > > I don’t think that there is any provision in the Constitution allowing the recall of U.S. Senators. > > If I am incorrect about that, I’m sure someone will be along to set the record straight. There’s no constitutional mechanism. I suppose in theory a state could provide for recall of its senators or representatives. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [February 25, 2016, 6:03pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/55 "2016-02-25T18:03:58Z")
> [@AskNott](#): > > That’s exactly what happened last time the Senate had a sham session to prevent the president from making any recess appointments. Three times a week, the Senate would officially open for the day. Ignoring the yelling for “point of order” from the opposition, the President Pro Tem closed the day’s session for the day a few seconds later. Technically, a point of order cannot be ignored, but that’s what happened. Isn’t it the VP’s job to act as Senate Speaker or whatever his title is? Wouldn’t he be the one, if he deigned to show up, to allow points of order? ---
**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 25, 2016, 6:16pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/56 "2016-02-25T18:16:33Z")
> [@md2000](#): > > Isn’t it the VP’s job to act as Senate Speaker or whatever his title is? Wouldn’t he be the one, if he deigned to show up, to allow points of order? The Vice President is the President of the Senate. However Senate rules make the President of the Senate a rather toothless position. The VP can cast a tie breaking vote, but that is about it. The presiding officer in the Senate is usually a designated junior Senator from the majority party. It is the presiding officer who would have to recognize such a point of order. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [February 25, 2016, 6:18pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/57 "2016-02-25T18:18:45Z")
> [@LSLGuy](#): > > My point precisely. Which is why accusing the senate of not doing its job, although tempting, is disingenuous. I would say that a Senate that refuses to even have hearings or a vote on a particular candidate within a reasonable timeframe is not doing its job. A Senate that schedules a vote and rejects every candidate offered is doing its job, and perhaps in precisely the way its constituents would like it to. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 25, 2016, 6:42pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/58 "2016-02-25T18:42:59Z")
> [@md2000](#): > > Isn’t it the VP’s job to act as Senate Speaker or whatever his title is? Wouldn’t he be the one, if he deigned to show up, to allow points of order? No. The Vice President of the United States (aka President of the Senate) “shall be President of the Senate, but shall have no Vote, unless they be evenly divided” (Article I, section 3). The VP gets to settle ties in the U.S. Senate. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 25, 2016, 6:48pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/59 "2016-02-25T18:48:46Z")
> [@iamthewalrus\_3](#): > > I would say that a Senate that refuses to even have hearings or a vote on a particular candidate within a reasonable timeframe is not doing its job. > > A Senate that schedules a vote and rejects every candidate offered is doing its job, and perhaps in precisely the way its constituents would like it to. I would say that a Senate which refuses to even have hearings, or a vote, on a Presidential nominee within a reasonable timeframe is doing its job. The bottom line is that the Senate either confirms or doesn’t confirm the nominee. ---
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [February 25, 2016, 7:19pm UTC](https://boards.straightdope.com/t/from-a-legal-pov-can-the-republicans-just-leave-the-supreme-court-seat-vacant-until-2021/746950/60 "2016-02-25T19:19:08Z")
I don’t think Obama needs to push it anyway. With Trump looking to be sailing towards the Republican nomination odds are that the next President will be a Democrat. Also lame-duck Presidents can easily come unstuck in getting their chosen candidate into SCOTUS, as witness LBJ’s failure in his final year of office to get Abe Fortas past the Senate. [Previous 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) [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=4)