# If a future Senate ever again ignores a Supreme Court nominee - what could be done? **URL:** \ **Category:** Politics & Elections\ **Created:** [October 6, 2018, 9:07pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579 "2018-10-06T21:07:25Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Thing\_Fish](https://avatars.discourse-cdn.com/v4/letter/t/ecb155/32.png) [@Thing\_Fish](https://boards.straightdope.com/u/Thing_Fish)\ **Post date:** [October 7, 2018, 1:50am UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/21 "2018-10-07T01:50:17Z")
> [@Bryan\_Ekers](#): > > By the way, the situation is not unprecedented. Millard Fillmore made three nominations, all of which were ignored by the Senate until Fillmore was replaced by Pierce. Another interestingly non-unprecedented situation: In 1866, Congress passed a law stating that no SCOTUS Justices to die or retire could be replaced until after the next President was inaugurated. I’m just sayin’. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [October 7, 2018, 1:53am UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/22 "2018-10-07T01:53:20Z")
> [@Thing\_Fish](#): > > Another interestingly non-unprecedented situation: In 1866, Congress passed a law stating that no SCOTUS Justices to die or retire could be replaced until after the next President was inaugurated. I’m just sayin’. That’s not such a bad idea, at least as compared to present circumstances, by my initial thinking. Then, every single Presidential election would be a referendum on who should be nominated to the SCOTUS, and thus every nomination and confirmation would come relatively shortly after a national election, gaining a lot more legitimacy. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [October 7, 2018, 1:54am UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/23 "2018-10-07T01:54:00Z")
> [@Chronos](#): > > Or he could have asked the President of the Senate to call the matter to a vote, instead of just sitting around doing nothing. > [@Stranger\_On\_A\_Train](#): > > I assume you mean the Senate Majority Leader (the President of the Senate during Obama’s Presidency was Vice President Joe Biden) but it was clear that McConnell and Grassley were never going to let Obama appoint any more justices to the Supreme Court regardless In any case, I believe the Rules do not provide for the Majority Leader or Vice President to just call the matter to a vote on their say-so, if the matter was referred to Grassley’s committee and he was just sitting on it; it would take approving a discharge petition. Which requires at least part of the majority to cooperate. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 7, 2018, 2:55am UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/24 "2018-10-07T02:55:02Z")
> [@HurricaneDitka](#): > > He could withdraw the nominee and nominate someone the Senate is willing to consider. That would be, at this point, norm-breaking I think. Or, before ever putting forward a nominee, the Prez could listen to what the Senators are saying about who they would like to see. Maybe pay close attention to what a respected senator like Orrin Hatch, former chair of the Judiciary committee, and still a member of it, said before the Prez sent his nominee to the Senate: > [@](#): > > **A Republican on the Senate Judiciary Committee said on Thursday he would help moderate jurist Merrick Garland win Senate confirmation if President Barack Obama nominated him to the U.S. Supreme Court.** > > Senator Oregon Hatch said he had known the federal appeals court judge, seen as a leading contender for the Supreme Court, for years and that he would be a “ **consensus nominee** ”. > > Asked if Garland would win Senate confirmation with bipartisan support, Hatch told Reuters **“no question.”** > > "I have no doubts that Garland would get a lot of (Senate) votes. **And I will do my best to help him get them,"** added Hatch, a former Judiciary Committee chairman. So really, Obama should have just listened to a clear signal like that, and in a spirit of bipartisanship, nominated the clear consensus candidate. Right, **Hurricane Ditka**? ---
**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:** [October 7, 2018, 3:18am UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/25 "2018-10-07T03:18:41Z")
> [@HurricaneDitka](#): > > He could withdraw the nominee and nominate someone the Senate is willing to consider. That would be, at this point, norm-breaking I think. Bullshit. Obama nominated the guy that Orrin Hatch had asked for. And the Republicans still refused to even hold a hearing. Obama didn’t just meet the Republicans halfway; he went nine-tenths of the way. But there’s a solution to this problem. It’s the same thing that will solve a lot of problems in American politics. Vote the Republicans out of office. Get rid of the Republicans and the American system of government works just fine. ---
**Author:** ![Dale\_Sams](https://avatars.discourse-cdn.com/v4/letter/d/779978/32.png) [@Dale\_Sams](https://boards.straightdope.com/u/Dale_Sams)\ **Post date:** [October 7, 2018, 3:46am UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/26 "2018-10-07T03:46:46Z")
> [@BobLibDem](#): > > Of course, you could have a Senate Majority Leader who says “One of my proudest moments was when I told Obama, 'You will not fill this Supreme Court vacancy.” Republicans didn’t give a flying fuck who Obama nominated. They simply didn’t want to let him nominate anybody at all. > > But thanks for the rallying cry, Republicans. For insisting on a drunken perjuring rapist, you’ve given the Democrats both houses of Congress next month. Would you like to wager on that? ---
**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:** [October 7, 2018, 4:36am UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/27 "2018-10-07T04:36:33Z")
It would have been far-fetched anyways, but I think the NLRB recess appointments case from 2014 probably slammed the door on any kind of legal remedy. The Senate alone decides if it is in session, so I assume that the Senate alone also decides if it has consented. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 7, 2018, 5:35am UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/28 "2018-10-07T05:35:20Z")
The President might if his party controls the House of Representatives, get a recess appointment by dismissing Congress. If the House and Senate disagree on adjournment under Article II, Section 3, Clause 3 the President can adjourn them to a time it thinks proper. So if the Presidents party controls the lower House (not the case with Garland(, then he would be able to get a recess appointment through. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 7, 2018, 2:34pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/29 "2018-10-07T14:34:58Z")
> [@Northern\_Piper](#): > > Or, before ever putting forward a nominee, the Prez could listen to what the Senators are saying about who they would like to see. > > Maybe pay close attention to what a respected senator like Orrin Hatch, former chair of the Judiciary committee, and still a member of it, said before the Prez sent his nominee to the Senate I don’t know why people keep trotting out that stale quote over and over again. For better or worse, the Senate is highly sensitive to changes in the so-called balance of the Supreme Court. If you look at the date of that quote (2010), you’ll see that it was made in the context of replacing Souter. And Obama didn’t listen to Hatch at the time. He nominate Kagen. Garland, of course, was nominated by Obama to replace Scalia. Different ball game. Now, you might argue that Senators should not pay attention to the so-called balance of the court, but of course they do. If you thought the nomination of Kavanaugh was contentious, just wait until a Republican President gets to nominate someone to replace Ginsburg, Breyer, Kagen or Sotomayor. To answer the OP, what could be done is the same thing that was or wasn’t done in the other times when the Senate did the same thing. Because we all know (or should know) that Garland was not the first SCOTUS nominee to be ignored by the Senate. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 7, 2018, 2:39pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/30 "2018-10-07T14:39:55Z")
> [@AK84](#): > > The President might … by dismissing Congress. No such authority exists. This isn’t a parliamentary system and he’s not a Prime Minister. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 7, 2018, 2:41pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/31 "2018-10-07T14:41:45Z")
> [@HurricaneDitka](#): > > He could withdraw the nominee and nominate someone the Senate is willing to consider. Who would McConnell have been willing to consider? Once again, btw, it wasn’t “the Senate”, as you damn well ought to understand by now, after having it explained to you so many times. You’re not the only one solemnly repeating that same nonsense, of course, just the most persistent. As for what can be done, other than electing a permanent Adults Party majority in the Senate, it would take a Constitutional amendment allowing appointments to take effect after a certain period if the Senate leadership refuses to do its duty. Having a Democratic majority adopt the McConnell Rule for Republican appointments might also get the idea across. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [October 7, 2018, 3:26pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/32 "2018-10-07T15:26:22Z")
> [@ElvisL1ves](#): > > No such authority exists. This isn’t a parliamentary system and he’s not a Prime Minister. Our distinguished foreign counsel did provide a cite (not for dismissal however, but for adjourning and reconvening), \*however \*this faculty \*\*only \*\*works if there is a standoff between the houses as to when to call adjournment: > [@](#): > > Constitution of the United States, Article II Section 3 > > He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; _he may, on extraordinary occasions, convene both Houses, or either of them, **and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper** _; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. If OTOH _both houses arrange to remain in pro-forma session_, there is no recurring to this power. Again, a case where there is a tool but it cannot be used freely at personal discretion. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 7, 2018, 3:30pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/33 "2018-10-07T15:30:43Z")
> [@ElvisL1ves](#): > > No such authority exists. Yes it does actually. Specifically, [Article II Section 3](https://www.law.cornell.edu/constitution/articleii), in case of disagreement between the Houses on time of adjournment > [@](#): > > and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; Dismiss here means, send them home adjourned. > [@](#): > > This isn’t a parliamentary system and he’s not a Prime Minister. The term you are looking for is not dismiss its dissolution of Parliament and obviously, that does not exist in the US where the life of a Congress is set by the Constitution and is fixed and incidentally the power (where it exists) usually rests with the Head of State not the Prime Minister. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 7, 2018, 3:41pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/34 "2018-10-07T15:41:00Z")
> [@JRDelirious](#): > > Our distinguished foreign counsel did provide a cite (not for dismissal however, but for adjourning and reconvening), \*however \*this faculty \*\*only \*\*works if there is a standoff between the houses as to when to call adjournment: > > If OTOH _both houses arrange to remain in pro-forma session_, there is no recurring to this power. Again, a case where there is a tool but it cannot be used freely at personal discretion. 🙂 Ninjad! As I said I used dismissed in the sense of sending home not disestablishing. This section got some talk as a fall back for Obama during the Garland saga, I think SCOTUSBlog wrote on it. In addition, the President can also convene one or both houses on extraordinary occasions, and there was an argument that Obama could convene the Senate arguing a vacancy in the SC mattered with agenda of confirming. ---
**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:** [October 7, 2018, 3:59pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/35 "2018-10-07T15:59:13Z")
> [@AK84](#): > > The term you are looking for is not dismiss its dissolution of Parliament and obviously, that does not exist in the US where the life of a Congress is set by the Constitution and is fixed and incidentally the power (where it exists) usually rests with the Head of State not the Prime Minister. This whole situation couldn’t have occurred in a country with a parliamentary government. In such a system, the Prime Minister has to have a majority supporting him in the legislature; it’s how you get the job. If for some reason, the Prime Minister loses the support of their party, they hold an election to vote in a new parliament. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [October 7, 2018, 4:09pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/36 "2018-10-07T16:09:41Z")
Actually, I did mean the President of the Senate, since Obama asking the (Republican) President Pro Tem to do anything was fruitless. > [@](#): > > Quoth **JRDelerious** : > > In any case, I believe the Rules do not provide for the Majority Leader or Vice President to just call the matter to a vote on their say-so, if the matter was referred to Grassley’s committee and he was just sitting on it; it would take approving a discharge petition. Which requires at least part of the majority to cooperate. The rules do provide for it. The Senate’s power to determine its own rules does not negate what’s laid out in the Constitution, and what’s laid out in the Constitution says that the Vice President of the United States is the President of the Senate. Therefore, the VP can preside, whether the rest of the Senate likes it or not. ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [October 7, 2018, 5:18pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/37 "2018-10-07T17:18:01Z")
> [@John\_Mace](#): > > I don’t know why people keep trotting out that stale quote over and over again. For better or worse, _ **the Senate is highly sensitive to changes in the so-called balance of the Supreme Court** _. If you look at the date of that quote (2010), you’ll see that it was made in the context of replacing Souter. And Obama didn’t listen to Hatch at the time. He nominate Kagen. > > Garland, of course, was nominated by Obama to replace Scalia. Different ball game. > > Now, you might argue that Senators should not pay attention to the so-called balance of the court, but of course they do. If you thought the nomination of Kavanaugh was contentious, just wait until a Republican President gets to nominate someone to replace Ginsburg, Breyer, Kagen or Sotomayor. > > To answer the OP, what could be done is the same thing that was or wasn’t done in the other times when the Senate did the same thing. Because we all know (or should know) that Garland was not the first SCOTUS nominee to be ignored by the Senate. The “Senate” is polarized. At least one party will do anything to gain advantage. That’s about the only thing you can say of them as a whole body. Whatever you are talking about with respect to “balance,” if it ever existed, expired when Mcconnell “ignored” garland. Mcconnell was not seeking balance. He was seeking total victory and hence, imbalance. I have to add that he protected russian incursion during the election by threats against lawmakers. ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [October 7, 2018, 5:56pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/38 "2018-10-07T17:56:27Z")
Sorry I have to clarify that last thing: Mcconnell was told about Russian incursions to help trump win, during the campaign, and his response was to threaten the FBI and his fellow lawmakers that he would loudly complain publicly that this was a hoax by the democratic party. He got his way and they let him. ---
**Author:** ![Chisquirrel](https://avatars.discourse-cdn.com/v4/letter/c/6bbea6/32.png) [@Chisquirrel](https://boards.straightdope.com/u/Chisquirrel)\ **Post date:** [October 7, 2018, 6:37pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/39 "2018-10-07T18:37:55Z")
> [@HurricaneDitka](#): > > He could withdraw the nominee and nominate someone the Senate is willing to consider. That would be, at this point, norm-breaking I think. If they’re not going to wait for the body to be cold to proclaim that no nomination the President puts forth will be considered, who could be put forth? Maybe someone suggested by a Senator in an interview, perhaps? ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [October 7, 2018, 6:51pm UTC](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579/40 "2018-10-07T18:51:40Z")
> [@Chisquirrel](#): > > … who could be put forth? … I’ve already answered this. If Obama had nominated someone like Gorsuch, I’m confident McConnell would have reversed himself and the Senate would have voted on the nominee. [Previous page](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579.md?page=1) [Next page](https://boards.straightdope.com/t/if-a-future-senate-ever-again-ignores-a-supreme-court-nominee-what-could-be-done/822579.md?page=3)