# If SCOTUS gridlock continues after the election, what could a president Clinton do? **URL:** \ **Category:** Politics & Elections\ **Created:** [August 9, 2016, 12:39pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239 "2016-08-09T12:39:05Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![oft\_wears\_hats](https://avatars.discourse-cdn.com/v4/letter/o/7993a0/32.png) [@oft\_wears\_hats](https://boards.straightdope.com/u/oft_wears_hats)\ **Post date:** [August 9, 2016, 4:46pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/21 "2016-08-09T16:46:01Z")
I think there’s something about the nominee picking up a cherry with their buttocks, carrying it through an obstacle course, and dropping it into a mug of beer. Maybe that was only on Family Guy. The President signs a commission, which is then countersigned by the Attorney General and marked with the Seal of the Department of Justice. > [@U.S.C. § 2902](#): > > (c) The commissions of judicial officers and United States attorneys and marshals, appointed by the President, by and with the advice and consent of the Senate, and other commissions which before August 8, 1888, were prepared at the Department of State on the requisition of the Attorney General, shall be made out and recorded in the Department of Justice under the seal of that department and countersigned by the Attorney General. The departmental seal may not be affixed to the commission before the commission has been signed by the President. After that, there’s a ceremony where the new Justice is sworn in, but I don’t have a primary cite for 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:** [August 9, 2016, 4:47pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/22 "2016-08-09T16:47:58Z")
> [@Northern\_Piper](#): > > If the Dems gain a very small majority on the Senate (say one or two) could they use that majority to force an adjournment for a month, clearing the way for a recess appointment? Or can even a motion to adjourn be filibustered? No. The Senate cannot adjourn for more than 3 days without the consent of the House, and vice versa. (Article I, Section 5 of US Constitution) Depending upon circumstance a motion to adjourn might be a privileged motion, exempt from debate, amendment, or filibuster… but it still does not obviate the requirement to gain the House’s consent to adjourn for more than 3 days. ---
**Author:** ![Ambrosio\_Spinola](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Ambrosio\_Spinola](https://boards.straightdope.com/u/Ambrosio_Spinola)\ **Post date:** [August 9, 2016, 4:49pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/23 "2016-08-09T16:49:54Z")
> [@AlsoNamedBort](#): > > What is exactly is the process by which a Justice is appointed? I mean after the Senate approves them. Does the President just sign a piece of paper and they show up to court? Once the Senate approves a nominee, the President (or whoever on the President’s staff handles this stuff) signs an official judicial commission, which is then delivered to the new Justice, at which point they show up to court. I guess they also publish it in the Federal Register. This process means that a President could theoretically change their mind _after_ the Senate agreed to confirm the appointee, and refuse to sign the commission. As far as I know, this has never actually happened with any appointed/confirmed position. The famous case of _Marbury v. Madison_ involved some commissions that John Adams had signed but that Thomas Jefferson refused to deliver or recognize, though. ---
**Author:** ![Ukulele\_Ike](https://avatars.discourse-cdn.com/v4/letter/u/df788c/32.png) [@Ukulele\_Ike](https://boards.straightdope.com/u/Ukulele_Ike)\ **Post date:** [August 9, 2016, 4:54pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/24 "2016-08-09T16:54:02Z")
> [@oft\_wears\_hats](#): > > I think there’s something about the nominee picking up a cherry with their buttocks, carrying it through an obstacle course, and dropping it into a mug of beer. Maybe that was only on Family Guy. No, no, Clarence Thomas was allowed to do it that way. But only because he insisted. ---
**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:** [August 9, 2016, 4:55pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/25 "2016-08-09T16:55:46Z")
> [@Dangerosa](#): > > I think she simply asks the Supremes for a ruling on “advise and consent” - if Congress refuses to do the “advise and consent” job, can she simply appoint after a period of time? And I suspect the Supremes will say yes - if Congress won’t, she must. > > Which will put a timer on Presidential appointments requiring advise and consent and break some of the ongoing gridlock outside of the Court as well, including lower courts. The Supreme Court is [prohibited from providing a ruling](https://en.wikipedia.org/wiki/Case_or_Controversy_Clause) on anything that is not a case before it. Period. So the president cannot just ask for their advice or ruling on a matter without there being a case. And the Court very well might say that the whole retched mess is a [political question](https://en.wikipedia.org/wiki/Political_question) that the courts are barred from considering. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [August 9, 2016, 4:58pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/26 "2016-08-09T16:58:35Z")
Go full nuclear. Have Hillary appoint a SCOTUS anyway, regardless of what the Senate tries to do to stop them. Lock the doors of the Senate chambers so they can’t fake being in session, or dare them to impeach her by simply telling the American people that we can’t have the SCOTUS seat be empty so long and just put someone there. Sure, they’ll move for impeachment procedures, but they won’t get 2/3rds of the vote in the Senate no matter what ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [August 9, 2016, 5:21pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/27 "2016-08-09T17:21:21Z")
> [@yellowjacketcoder](#): > > No argument there. Although 3-2-1 isn’t hot for the Republicans either. Then again Breyer is also pretty old. But so is Kennedy. > > Long story short, there’s a lot of old people on the court. [Birth dates of the Justices](https://www.supremecourt.gov/about/biographies.aspx), in chronological order: Ruth Bader Ginsburg: March 15, 1933 Anthony Kennedy: July 23, 1936 Stephen Breyer: August 15, 1938 Clarence Thomas: June 23, 1948 Samuel Alito: April 1, 1950 Sonia Sotomayor: June 25, 1954 John Roberts: January 27, 1955 Elena Kagan: April 28, 1960 Thomas is a decade younger than Breyer, so it may be quite a while before any of those last five retire. But if Hillary serves 2 terms, Breyer would be 86 when her successor is elected, so under that scenario, Hillary would be likely to get to appoint 4 Justices, unless the Senate caves on Garland this year. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [August 9, 2016, 5:39pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/28 "2016-08-09T17:39:06Z")
> [@asahi](#): > > I think that voters would grow weary of it and push the GOP to accept the nominee. If the GOP line is let’s let the people decide and then we have an election in which Clinton is the landslide president-elect, then what else do republicans have to fall back on? I also think that if she plays her cards right, Clinton can scold the republicans to work with her if they become obstinate the way they were with Obama. It’s getting to the point of put-up or shut-up for republicans. > They’ve pretty much accomplished this with Obama, who not even a few years ago had abysmal approval ratings (not his fault, fwiw). But now he looks like FDR on some days. And it’s the fault of republican obstructionism. The GOP doesnt really listen to the ‘voters’. They have their diehard fans, and that is enuf. ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [August 9, 2016, 6:05pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/29 "2016-08-09T18:05:56Z")
> [@Iggy](#): > > The Supreme Court is [prohibited from providing a ruling](https://en.wikipedia.org/wiki/Case_or_Controversy_Clause) on anything that is not a case before it. Period. So the president cannot just ask for their advice or ruling on a matter without there being a case. > > And the Court very well might say that the whole retched mess is a [political question](https://en.wikipedia.org/wiki/Political_question) that the courts are barred from considering. So the JD - the executive branch - files a case. The did it quickly with Bush v. Gore - if the ability to govern is at stake, two branches can trump the third - that’s why there are three. I think they are unlikely to say its a political question, as its a matter of being able to govern. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [August 9, 2016, 6:20pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/30 "2016-08-09T18:20:43Z")
> [@asahi](#): > > I think that voters would grow weary of it and push the GOP to accept the nominee. If the GOP line is let’s let the people decide and then we have an election in which Clinton is the landslide president-elect, then what else do republicans have to fall back on?. The only way they’ll need to “fall back on” any talking points is if they keep a majority in the Senate, right? In, presumably, the same election where they win a majority of the races for the House? After various Republican members of the House and Senate announce that this weird fluke election involves so awful a GOP candidate that they (a) can’t back him, and (b) instead urge everyone to vote for legislators who’ll keep Hillary Clinton honest instead of giving her a blank check? I wouldn’t be _too_ too surprised if they offered that up. ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [August 9, 2016, 6:20pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/31 "2016-08-09T18:20:44Z")
> [@RTFirefly](#): > > [Birth dates of the Justices](https://www.supremecourt.gov/about/biographies.aspx), in chronological order: > > Ruth Bader Ginsburg: March 15, 1933 > Anthony Kennedy: July 23, 1936 > Stephen Breyer: August 15, 1938 > Clarence Thomas: June 23, 1948 > Samuel Alito: April 1, 1950 > Sonia Sotomayor: June 25, 1954 > John Roberts: January 27, 1955 > Elena Kagan: April 28, 1960 > > Thomas is a decade younger than Breyer, so it may be quite a while before any of those last five retire. But if Hillary serves 2 terms, Breyer would be 86 when her successor is elected, so under that scenario, Hillary would be likely to get to appoint 4 Justices, unless the Senate caves on Garland this year. That assumes the younger five stay healthy for eight years and none of them retire for personal reasons. Roberts, Alito and Thomas are already in their 60s - Thomas nearing 70. ---
**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:** [August 9, 2016, 6:50pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/32 "2016-08-09T18:50:38Z")
> [@Dangerosa](#): > > I think they are unlikely to say its a political question, as its a matter of being able to govern. The Supreme Court had fewer than nine justices initially, and for many decades following, so I’m not sure that’s a compelling argument. The fundamental question seems to be whether you can force the legislature to vote on something. I’m not sure you can. And, even if you could, would it make that much of a difference? If the Senate were forced to vote on the appointment, couldn’t Senate republicans make basically the same argument, saying “We’re going to vote against any proposed appointment by the sitting President because we believe the next President should make the appointment”, and then vote them all down. ---
**Author:** ![Dangerosa](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Dangerosa](https://boards.straightdope.com/u/Dangerosa)\ **Post date:** [August 9, 2016, 7:08pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/33 "2016-08-09T19:08:59Z")
> [@iamthewalrus\_3](#): > > The Supreme Court had fewer than nine justices initially, and for many decades following, so I’m not sure that’s a compelling argument. > > The fundamental question seems to be whether you can force the legislature to vote on something. I’m not sure you can. And, even if you could, would it make that much of a difference? If the Senate were forced to vote on the appointment, couldn’t Senate republicans make basically the same argument, saying “We’re going to vote against any proposed appointment by the sitting President because we believe the next President should make the appointment”, and then vote them all down. You wouldn’t be forcing them TO vote, you’d be forcing them to either vote or the appointment moves through. If they choose not to vote, then… Recess appointments weren’t designed as a run around - they were designed because you need people in those jobs and Congress would go out of session for months at a time. Even before this fiasco, some Supremes have indicated that the work load is pretty heavy for nine people. (RBG for one). And that - even with a staff of clerks - its a lot of work to get through. Being short a Justice means everyone writes more opinions. The caseload is higher than it was 150 years ago. ---
**Author:** ![CaptMurdock](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/captmurdock/32/11736_2.png) [@CaptMurdock](https://boards.straightdope.com/u/CaptMurdock)\ **Post date:** [August 9, 2016, 7:13pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/34 "2016-08-09T19:13:32Z")
> [@YogSothoth](#): > > Go full nuclear. Have Hillary appoint a SCOTUS anyway, regardless of what the Senate tries to do to stop them. Lock the doors of the Senate chambers so they can’t fake being in session, or dare them to impeach her by simply telling the American people that we can’t have the SCOTUS seat be empty so long and just put someone there. Sure, they’ll move for impeachment procedures, but they won’t get 2/3rds of the vote in the Senate no matter what Loud cheers! 😃 It says “advise and consent.” There’s nothing saying that the Senate has to give a rubber-stamp consent, but refusing to even hold hearings is NOT “advising.” If Scalia had cacked in August, I can see the Senate holding off, election year and all that. He passed in February. SIX MONTHS AGO. We got to the moon faster than that. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [August 9, 2016, 7:23pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/35 "2016-08-09T19:23:05Z")
> [@CaptMurdock](#): > > It says “advise and consent.” There’s nothing saying that the Senate has to give a rubber-stamp consent, but refusing to even hold hearings is NOT “advising.” What if they hold hearings, and then vote ‘nay’ every time? Would you say, all in caps, that such a course of action is NOT “consenting”? ---
**Author:** ![Ambrosio\_Spinola](https://avatars.discourse-cdn.com/v4/letter/a/9de0a6/32.png) [@Ambrosio\_Spinola](https://boards.straightdope.com/u/Ambrosio_Spinola)\ **Post date:** [August 9, 2016, 7:28pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/36 "2016-08-09T19:28:25Z")
> [@CaptMurdock](#): > > Loud cheers! 😃 > > It says “advise and consent.” There’s nothing saying that the Senate has to give a rubber-stamp consent, but refusing to even hold hearings is NOT “advising.” If Scalia had cacked in August, I can see the Senate holding off, election year and all that. He passed in February. SIX MONTHS AGO. We got to the moon faster than that. The problem with this argument is that it’s 2016, not 1816. Supreme Court appointments have been confirmed by the Senate for hundreds of years; unilaterally changing it isn’t going to happen. (However, the whole months long process of information gathering, hearings, etc. is a _relatively_ modern development, the Senate could just as easily give the nominee an up-or-down vote the day after the nomination.) This whole situation is a genuine Constitutional crisis, albeit in slow motion. It’s not like we’ve never had such crises in the past though, so I’m hoping it works out - but I hope it works out in the sense that the Senate starts doing their jobs (either through shame or change in membership), not because the President starts changing settled procedure or through decree. ---
**Author:** ![BrotherCadfael](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@BrotherCadfael](https://boards.straightdope.com/u/BrotherCadfael)\ **Post date:** [August 9, 2016, 7:38pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/37 "2016-08-09T19:38:49Z")
> [@YogSothoth](#): > > Go full nuclear. Have Hillary appoint a SCOTUS anyway, regardless of what the Senate tries to do to stop them. Lock the doors of the Senate chambers so they can’t fake being in session, or dare them to impeach her by simply telling the American people that we can’t have the SCOTUS seat be empty so long and just put someone there. Sure, they’ll move for impeachment procedures, but they won’t get 2/3rds of the vote in the Senate no matter what Or, she could always do what other presidents faced with a Senate held by the other party have done, and appoint a justice more to their liking. But acting as a tyrant would, I am sure, be much more fun. ---
**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:** [August 9, 2016, 8:14pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/38 "2016-08-09T20:14:07Z")
> [@Dangerosa](#): > > So the JD - the executive branch - files a case. The did it quickly with Bush v. Gore - if the ability to govern is at stake, two branches can trump the third - that’s why there are three. > > I think they are unlikely to say its a political question, as its a matter of being able to govern. FWIW, the Justice Department was not a party to Bush v Gore. Bush v Gore and the closely related Bush v Palm Beach County Canvassing Board were deliberated under a deadline by which Electoral College votes were to be cast and counted. No such deadline exists in the case of appointing a Supreme Court justice. One of the criteria to determine if a matter is a political question and thus nonjusticiable is whether it would be an “impossibility for a court’s independent resolution without expressing a lack of respect for a coordinate branch of the government.” See _[Baker v. Carr](https://en.wikipedia.org/wiki/Baker_v._Carr)_. A Court ruling that the Senate must hold hearings, hold a vote, or even vote to give advice and consent on a nominee would put the Court in the position of usurping the Senates role - a most definite lack of respect for a coordinate branch of government. It’s a political question the court would not touch. ---
**Author:** ![carnivorousplant](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnivorousplant/32/3563_2.png) [@carnivorousplant](https://boards.straightdope.com/u/carnivorousplant)\ **Post date:** [August 9, 2016, 8:21pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/39 "2016-08-09T20:21:08Z")
> [@Ukulele\_Ike](#): > > No, no, Clarence Thomas was allowed to do it that way. But only because he insisted. I thought it was a can of Cherry Coke with a hair on it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 9, 2016, 8:27pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/40 "2016-08-09T20:27:35Z")
> [@YogSothoth](#): > > Go full nuclear. Have Hillary appoint a SCOTUS anyway, regardless of what the Senate tries to do to stop them. Lock the doors of the Senate chambers so they can’t fake being in session, or dare them to impeach her by simply telling the American people that we can’t have the SCOTUS seat be empty so long and just put someone there. Sure, they’ll move for impeachment procedures, but they won’t get 2/3rds of the vote in the Senate no matter what One of the primary reasons I am voting for Clinton over Trump is my concern that tactics like this would be a feature of a Trump administration and not a Clinton one. Are you suggesting I was mistaken in that analysis? [Previous page](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239.md?page=1) [Next page](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239.md?page=3)