# 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:** 3
**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, 8:36pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/41 "2016-08-09T20:36:38Z")
> [@The\_Other\_Waldo\_Pepper](#): > > 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”? If they actually hold hearings and vote “nay” every time, they at least have to have **some** reason. Sorry if my using bold and underline offends you, BTW. > [@Ambrosio\_Spinola](#): > > 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. For hundreds of years, the Senate didn’t sit with their arms crossed, holding their breath until they turned blue like a bunch of toddlers who were told, no, they can’t have cake for dinner. > [@BrotherCadfael](#): > > 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. _Excuse me._ Garland got passed nearly unilaterally by the Senate for a lower court appointment not that long ago. Orrin Hatch – **Orring Freakin’ Hatch** – gave this guy a thumbs-up. How much “more to their liking” does a SCOTUS appointee have to be? One who pledges to repeal the 14th and 19th Amendments, so start? Horse hockey. ---
**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, 8:49pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/42 "2016-08-09T20:49:34Z")
> [@CaptMurdock](#): > > If they actually hold hearings and vote “nay” every time, they at least have to have **some** reason. Sorry if my using bold and underline offends you, BTW. Doesn’t offend me at all, but I think you missed the point I was trying to emphasize equally hard: if they vote ‘nay’ every time, then they aren’t consenting – which you seem to be okay with. But if you’re okay with them hypothetically not bothering with the “consent” half of “advise and consent”, then why rail against them for not bothering with the “advise” half of “advise and consent”? If, either way, they’re flatly not consenting, then what’s the difference if they also aren’t advising? I can see reading it as requiring them to do both. I can see reading it as requiring neither. But reading it to require one, and not the other? ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [August 9, 2016, 8:53pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/43 "2016-08-09T20:53:04Z")
> [@DrDeth](#): > > The GOP doesnt really listen to the ‘voters’. They have their diehard fans, and that is enuf. Agreed, but I predict that this can only continue for so long. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [August 9, 2016, 9:28pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/44 "2016-08-09T21:28:33Z")
> [@Bricker](#): > > 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? In fairness, the question presupposes the Senate Republicans are already pursuing a very extreme tactic (even by the standards of the Senate today). Basically saying “We lied, it wasn’t about waiting for the election, it was just that we won’t accept any nominee less conservative than Scalia.” A question of the form “If Republicans pursue extreme tactic X, what can Clinton do to counter?” naturally fuels suggestions of an extreme response on Clinton’s part. That said, even _if_ the Republicans pursue such a strategy, there are probably less extreme options available to Clinton than to literally bar the doors of the Senate. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [August 9, 2016, 9:34pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/45 "2016-08-09T21:34:41Z")
> [@The\_Other\_Waldo\_Pepper](#): > > Doesn’t offend me at all, but I think you missed the point I was trying to emphasize equally hard: if they vote ‘nay’ every time, then they aren’t consenting – which you seem to be okay with. > > But if you’re okay with them hypothetically not bothering with the “consent” half of “advise and consent”, then why rail against them for not bothering with the “advise” half of “advise and consent”? If, either way, they’re flatly not consenting, then what’s the difference if they also aren’t advising? > > I can see reading it as requiring them to do both. I can see reading it as requiring neither. But reading it to require one, and not the other? You’re not the first to suggest this. That means it was dismissed as an argument a very long time ago. IOW, it is not consent to have the Senate simply rubber-stamp the President’s nominees without ever being able to reject them and nobody in government thinks this way. Rejection is advising. ---
**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:** [August 9, 2016, 9:53pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/46 "2016-08-09T21:53:05Z")
> [@BrotherCadfael](#): > > 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. Except that’s exactly what Obama did with Garland. Orrin Hatch said that he was afraid Obama was going to nominate a radical lefty that the Republicans couldn’t accept, instead of a moderate centrist like Garland, whom the Repubs liked. So Obama said “Alrighty then, I’m nominating Garland.” And Mitch McConnell recoiled in horror and said “No. There is no-one that this President can nominate that we will approve in the last year of his term.” So the Senate is inventing a new constitutional doctrine that 25% of the time, a President is not allowed to nominate a Supreme Court justice. Doesn’t matter who the Prez sends forward, they’ll do nothing. ---
**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, 10:12pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/47 "2016-08-09T22:12:48Z")
> [@Exapno\_Mapcase](#): > > You’re not the first to suggest this. That means it was dismissed as an argument a very long time ago. I don’t follow. Are you saying it was _literally_ dismissed as an argument – such that the Senators claimed they’re not legally obligated to hold hearings, just like they’re not legally obligated to give consent, and judges ruled that, _no, you must; unless you’d rather face consequences as doled out by this court?_ Because I’m not aware of that happening; AFAICT, they’re _categorically_ refusing to consent, regardless of who the President puts before them; and they’re likewise refusing to hold hearings; and while we dicker over whether they can keep refusing to consent but must hold hearings, I don’t believe anyone has officially dismissed the argument that folks who don’t need to consent also don’t need to advise. AFAICT, they’re just going to keep on keeping on, because no one with authority has told them they need to start advising even if they keep refusing to consent. > [@](#): > > IOW, it is not consent to have the Senate simply rubber-stamp the President’s nominees without ever being able to reject them and nobody in government thinks this way. Rejection is advising. But is it _consenting?_ People are saying they have to Advise And Consent; right now they’re doing neither; if they change course, and start forever Advising but never Consenting, then – what? ---
**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, 10:19pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/48 "2016-08-09T22:19:05Z")
> [@BrotherCadfael](#): > > 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. Merrick Garland is a justice to their liking but I’m sure you know that. That you pretend otherwise shows me all I need to know about your politics. Further debate with you would be a waste of my time. > [@Bricker](#): > > 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? I think you are trying to have your cake and eat it too. It is the GOP that insists on forcing her hand, and so they have to eat crow. Clinton should do this, and you should accept and cheer her for doing it, because this fake shit of feigning outrage at an election year appointment is objectively, factually wrong and unprecedented. You should do anything you can to avoid the situation now. I won’t even go into McConnell’s reasoning, so full of shit is he with his slimy, slippery excuses that nobody believes him even if they support him. You should vote for Clinton and, if the seat is still unfilled, loudly cheer her as she forces someone super liberal on the GOP as punishment. ---
**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:** [August 9, 2016, 10:25pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/49 "2016-08-09T22:25:44Z")
> [@Exapno\_Mapcase](#): > > But if the Senate says it is in session during a _pro forma_ session, then it’s not in recess. That’s not anywhere in the Constitution, it’s a matter of Senate rules that the Court will honor. The Constitution specifically says that the Senate sets their own rules, so it’s not up to a President or a Court to determine when they are in recess. It’s up to the Senate. ---
**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, 11:35pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/50 "2016-08-09T23:35:35Z")
> [@YogSothoth](#): > > I think you are trying to have your cake and eat it too. It is the GOP that insists on forcing her hand, and so they have to eat crow. Clinton should do this, and you should accept and cheer her for doing it, because this fake shit of feigning outrage at an election year appointment is objectively, factually wrong and unprecedented. You should do anything you can to avoid the situation now. I won’t even go into McConnell’s reasoning, so full of shit is he with his slimy, slippery excuses that nobody believes him even if they support him. You should vote for Clinton and, if the seat is still unfilled, loudly cheer her as she forces someone super liberal on the GOP as punishment. I decline your invitation. I remain committed to supporting Clinton because Trump is Trump, but of all the arguments I have read, yours has come the closest to convincing me not to do that. ---
**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, 11:44pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/51 "2016-08-09T23:44:24Z")
Locking the doors to the Senate is rather like Nicholas II dissolving the Duma. And we know what happened to him, and to Russia. ---
**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:** [August 9, 2016, 11:57pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/52 "2016-08-09T23:57:13Z")
Perhaps someone would care to discuss what would happen if the senate simply turns down all her appointments. No secretary of state, no attorney general, no secretary of defense. Then what? Needless to say and in contrast to some of the opinions above, they are not required to give any reason whatever for their actions. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [August 10, 2016, 3:25am UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/53 "2016-08-10T03:25:24Z")
> [@CaptMurdock](#): > > …Garland got passed nearly unilaterally by the Senate for a lower court appointment not that long ago… I assume you meant “nearly unanimously.” ---
**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 10, 2016, 3:39pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/54 "2016-08-10T15:39:41Z")
> [@Elendil\_s\_Heir](#): > > I assume you meant “nearly unanimously.” Yes. Thank you. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [August 10, 2016, 3:49pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/55 "2016-08-10T15:49:46Z")
> [@Bricker](#): > > I decline your invitation. > > I remain committed to supporting Clinton because Trump is Trump, but of all the arguments I have read, yours has come the closest to convincing me not to do that. And you think that the way to solve unprecedented GOP obstruction is passivity? Clinton and the Dems make some noise about it every few months for 2 years, hoping that the midterms drop enough Senators to the D side so we can finally have our Constitutionally allowed nominee a vote? Or do you have a magical way to convince a recalcitrant GOP Senate to actually do their fucking jobs? ---
**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:** [August 10, 2016, 4:22pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/56 "2016-08-10T16:22:18Z")
> [@D\_Anconia](#): > > The Constitution specifically says that the Senate sets their own rules, so it’s not up to a President or a Court to determine when they are in recess. It’s up to the Senate. True to an extent. The Senate gets to set its own rules. But the concept of “recess” is not simply an internal matter for the Senate in this situation, because it affects one of the constitutional powers of the Executive branch. It is therefore appropriate for the Court to consider the meaning of “recess” to resolve a dispute between the other two branches. (And the more I type “recess” the more I think of the Senate as children on a playground. 🙂 ) ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [August 10, 2016, 4:26pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/57 "2016-08-10T16:26:06Z")
A favorite _New Yorker_ cartoon: [http://imgc-cn.artprintimages.com/images/P-473-488-90/60/6065/88AD100Z/posters/mick-stevens-recess-is-over-your-honor-new-yorker-cartoon.jpg](http://imgc-cn.artprintimages.com/images/P-473-488-90/60/6065/88AD100Z/posters/mick-stevens-recess-is-over-your-honor-new-yorker-cartoon.jpg) ---
**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 10, 2016, 4:35pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/58 "2016-08-10T16:35:12Z")
> [@Dangerosa](#): > > 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… I just don’t see such a change leading to any substantial difference. They could simply vote no on every candidate, and we’d be right back where we are. Now, _maybe_ they’d face more political pressure for doing so, but I’m not convinced that’s the case. The outcome is the same, which is that the President doesn’t get to appoint any justices, and, critically, this is an outcome that their supporters want. ---
**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 10, 2016, 5:06pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/59 "2016-08-10T17:06:59Z")
> [@iamthewalrus\_3](#): > > Now, _maybe_ they’d face more political pressure for doing so, but I’m not convinced that’s the case. The outcome is the same, which is that the President doesn’t get to appoint any justices, and, critically, this is an outcome that their supporters want. This goes to the heart of the matter, which is that we have a system which allows the President and the Senate (or Congress generally) to be separately elected in opposition to each other, each claiming a plausible mandate and each having separate democratic legitimacy, and also requires them to cooperate to accomplish anything. Some systems don’t have this particular flaw, but they have other flaws (like one political party getting 50% of the vote +1 person and then suddenly you have an established church), so it’s basically inherent in any governmental system that you can’t have everything, and you can’t have _anything_ unless people are participating in good faith. This is a genuine crisis, and in the worst scenario you could have it continue until you have some sort of complete breakdown in civil institutions and the Constitutional order. I hope that people will see reason before that point. ---
**Author:** ![filmore](https://avatars.discourse-cdn.com/v4/letter/f/7993a0/32.png) [@filmore](https://boards.straightdope.com/u/filmore)\ **Post date:** [August 10, 2016, 5:21pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/60 "2016-08-10T17:21:27Z")
I wish that the rule for appointments was that Congress had to act to _deny_ the appointment, not approve it. If they did nothing (after some period of time), then the appointment was approved by default. It would help reduce these kind of games. At least they’d have to go on record saying they deny the appointment. [Previous page](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239.md?page=2) [Next page](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239.md?page=4)