# 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:** 5
**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 25, 2016, 1:17pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/81 "2016-08-25T13:17:56Z")
> [@DSeid](#): > > IS there any set of actions or inactions that the Senate could do that would constitute abdication of their role to advise and consent? Any outrageous hypothetical that would justify the Court ruling that in the persistent absence of Senate advise the Executive was entitled to appoint? > > I’m thinking the playing out not only persistently refusing to hold hearing on this nominee but declaring that they will not consider ANY nominee that the opposition party’s executive submits no matter how matter Supremes die off or retire. Let me answer your question with a question: what happens if you get your wish? Well, like, _half_ your wish, I guess: they agree to hold hearings, while patiently explaining that they’ll vote ‘no’ every time. And so they hold hearings, and say ‘no’ every time, just like they said. Would you eventually be right back here, maybe in this very thread, claiming that the President is now entitled to appoint? ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [August 25, 2016, 2:11pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/82 "2016-08-25T14:11:19Z")
> [@DSeid](#): > > IS there any set of actions or inactions that the Senate could do that would constitute abdication of their role to advise and consent? Quite honestly, I think not. While I do believe that the Republicans in the Senate have already abdicated their role, there are no actions available to the President or the courts that could fix that. The solution lies at the level of the voters. The voters don’t seem to care. The Republican incumbents that are in trouble (Kirk, for example) are so for other reasons that the abdication of their duty, and the refusal to vote does not appear to be having an effect on others (Portman, for example). I don’t know that that’s fixable. If the voters won’t punish them, no one else can. ---
**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:** [August 25, 2016, 2:22pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/83 "2016-08-25T14:22:41Z")
> [@](#): > > Quoth **Frank** : > > Care to share with us some examples? Sure. Here’s a complete list of every previous time the Senate has tried this, along with a detailed description of the Presidential response in each case: As you can see, in every such case, the President has acted exactly as I describe. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [August 25, 2016, 2:22pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/84 "2016-08-25T14:22:46Z")
Other Waldo, I have expressed no wish. Just curious. My guess was as Frank had replied. That said it would be outside of precedent. I do wonder if a frustrated set of remaining jurists would consider whether or not it was outside of original intent. I doubt it though. Meanwhile it is having no impact mainly because there are such more dramatic items to focus upon. This time. ---
**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 25, 2016, 2:57pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/85 "2016-08-25T14:57:39Z")
> [@DSeid](#): > > Other Waldo, I have expressed no wish. Just curious. Gotcha. Though, as it happens, I’m likewise still curious: would you ask basically the same question if – like I’d said – the Senate announced that, while they’re of course not going to _consent_ to any nominee put forward by the President, they’ll hold hearings? So they hold a hearing, and say ‘no’. And they hold another hearing, and say ‘no’. And they routinely note that they’ll persist in refusing all such nominees. If that goes on long enough, would you ask the same question – not expressing a wish, but just curiosity – about whether _that_ would justify such a court ruling? ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [August 25, 2016, 3:33pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/86 "2016-08-25T15:33:55Z")
According to SCOTUS, the Senate being in session requires it to be able to conduct business. So the solution is for a Dem to move to vote on the nomination. Of course this is not allowed without a quorum so the Dem then moves for a Quorum Call which requires all of the Senators not excused to come into the Chambers (Rule VI). I would think that would get very old very quickly. Another technique may be to send the VP down to take over as Presiding Officer during the pro forma sessions. If the Dems have the majority they can move to adjourn so the President can make a recess appointment. They could even do this with the slight minority they have as long as there are fewer Pubs in the Chamber but there is a quorum present. ---
**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 25, 2016, 5:41pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/87 "2016-08-25T17:41:46Z")
> [@Northern\_Piper](#): > > …is a motion to adjourn subject to the filibuster? because if it is not, then there is a procedural route for the Dems with a slight majority in the Senate, acting with a Democratic President, to cause a recess of more than three days… I don’t think it is subject to filibuster, and I like the scenario you laid out. > [@Iggy](#): > > …Committee hearings are a relatively recent invention. In the olden days the Senate would often vote on a nomination, up or down, with no hearing at all… That’s right. In 1864, for instance, President Lincoln appointed William Pitt Fessenden as Secretary of the Treasury while the Maine senator was visiting the White House. As Fessenden arrived for a chat, Lincoln sent the nomination up to Capitol Hill by courier, unbeknownst to Fessenden. (Lincoln knew that Fessenden wouldn’t accept it if offered beforehand). Fessenden returned to the Senate after his visit to find that his colleagues had already voted to approve the nomination. With some grumbling, he agreed to take the Cabinet post. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [August 25, 2016, 5:43pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/88 "2016-08-25T17:43:10Z")
> [@Saint\_Cad](#): > > The Dem Senators always cave in to the procedural filibuster. This is where backbone needs to be shown. Kill the procedural filibuster and make them actually **filibuster**. See how long it takes them to get tired of showing themselves to actively be total asses on national TV every day. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [August 25, 2016, 5:49pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/89 "2016-08-25T17:49:13Z")
> [@Chronos](#): > > … after a reasonable delay to publicly declare that, the Senate having chosen not to vote down the nominee as is their Constitutional right, that the nominee is confirmed in accordance with the US Constitution. Except it wouldn’t be in accordance with the US Constitution. > [@](#): > > Sure. Here’s a complete list of every previous time the Senate has tried this, along with a detailed description of the Presidential response in each case: > > As you can see, in every such case, the President has acted exactly as I describe. You have listed nothing. Therefore, the President should do nothing. It isn’t a Constitutional crisis when the Democrats don’t get what they want. If Hillary tries this “you didn’t vote so I will go ahead and appoint him anyway” she look like a power-mad fool. Regards, Shodan ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [August 25, 2016, 6:37pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/90 "2016-08-25T18:37:25Z")
> [@Shodan](#): > > It isn’t a Constitutional crisis when the Democrats don’t get what they want. If Hillary tries this “you didn’t vote so I will go ahead and appoint him anyway” she look like a power-mad fool. The people who’d believe that of Clinton already believe much worse about her, so big deal. Anyway, as long as you’ve got ~25% of the voters who will vote Republican _no matter what_ and ~50% who will be indifferent, I guess you’re screwed. ---
**Author:** ![DonLogan](https://avatars.discourse-cdn.com/v4/letter/d/51bf81/32.png) [@DonLogan](https://boards.straightdope.com/u/DonLogan)\ **Post date:** [August 25, 2016, 7:28pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/91 "2016-08-25T19:28:20Z")
If Repubs held the Senate 51 - 49 and Clinton was elected, it would not surprise me in the least if they either refused to vote at all, or voted against every nominee that didn’t meet one or more litmus tests. Why would this surprise anyone? Just because they previously said it should wait until after the election? What could Clinton do about it? Nothing but complain. Although I suppose if one of the repub justices kicked the bucket during her term, she could nominate someone guaranteed not to pass, and thus reset the balance to 4- 3. ---
**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 25, 2016, 7:43pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/92 "2016-08-25T19:43:31Z")
> [@DonLogan](#): > > I Although I suppose if one of the repub justices kicked the bucket during her term, she could nominate someone guaranteed not to pass, and thus reset the balance to 4- 3. Jeez. What a way to run the USA. ---
**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 25, 2016, 9:13pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/93 "2016-08-25T21:13:35Z")
> [@Saint\_Cad](#): > > Another technique may be to send the VP down to take over as Presiding Officer during the pro forma sessions. If the Dems have the majority they can move to adjourn so the President can make a recess appointment. They could even do this with the slight minority they have as long as there are fewer Pubs in the Chamber but there is a quorum present. Subject, of course to **Iggy’s** point in post 22, that the Senate cannot adjourn without agreement by the Representatives, to which I responded in post 72 that perhaps a Dem-majority Senate and a Democratic President could together impose an adjournment on Congress that qualifies as a “recess” for the purposes of the President’s appointment power. ---
**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 25, 2016, 10:10pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/94 "2016-08-25T22:10:12Z")
> [@Chronos](#): > > Sure. Here’s a complete list of every previous time the Senate has tried this, along with a detailed description of the Presidential response in each case: > > As you can see, in every such case, the President has acted exactly as I describe. Missed a few. Yes, the Senate has previously simply refused to consider a nominee and never held an up-or-down vote. Sometimes they did the courtesy of voting to table the nomination and then never took it up again. Sometimes they just ignored the nomination. President Fillmore experienced both when his nominations of Edward Bradford and William Micou were not acted upon and his nomination of George Badger was tabled. And Fillmore did not unilaterally declare that he had waited long enough and attempt to seat his nominees without Advice and Consent of the Senate. In total the [Senate has refused to act](http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm) on nine nominations to the Supreme Court and have and have deferred action on another three. Twelve nominations were rejected by vote and twelve other nominations were withdrawn. Seven nominees declined the nomination and 117 were confirmed and served. Out of 160 total nominations to the Supreme Court, about 5.6% have resulted in no action by the Senate. That is a minority, for certain, but not unprecedented. ---
**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 25, 2016, 10:18pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/95 "2016-08-25T22:18:23Z")
> [@DSeid](#): > > IS there any set of actions or inactions that the Senate could do that would constitute abdication of their role to advise and consent? Any outrageous hypothetical that would justify the Court ruling that in the persistent absence of Senate advise the Executive was entitled to appoint? > … The Senate could, with consent of the House, recess for more than three days and thus permit the President to make a recess appointment. That could be seen as an affirmative action that would represent an abdication of responsibility by some, particularly if the recess seemed crafted to permit such recess nominees to be seated. And it would get the Senators off the hook about having to actually cast a vote on the matter. And in the _NLRB v Canning_ decision the Court was particular to note that the Senate must be able to conduct business according to its own rules for them to be considered in session and avert a recess appointment. They don’t have to actually conduct business, but hypothetically if they changed the Senate rules to make it impossible to conduct business during pro forma sessions then those \*might \*not be sufficient to stave off a recess appointment. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [August 26, 2016, 12:15am UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/96 "2016-08-26T00:15:00Z")
> [@Iggy](#): > > And in the _NLRB v Canning_ decision the Court was particular to note that the Senate must be able to conduct business according to its own rules for them to be considered in session and avert a recess appointment. They don’t have to actually conduct business, but hypothetically if they changed the Senate rules to make it impossible to conduct business during pro forma sessions then those \*might \*not be sufficient to stave off a recess appointment. Or if they tried to shut down a Dem conducting business using either method I talked about. I’ve seen the pro forma sessions and the presiding office is appointed by the majority leader. I’d tume in to CSPAN2 to watch Biden tell him, “No that’s my gavel.” When will the Dems grow a backbone and try to beat the Pubs at their procedural games? ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [August 26, 2016, 2:38am UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/97 "2016-08-26T02:38:34Z")
> [@The\_Other\_Waldo\_Pepper](#): > > Gotcha. Though, as it happens, I’m likewise still curious: would you ask basically the same question if – like I’d said – the Senate announced that, while they’re of course not going to _consent_ to any nominee put forward by the President, they’ll hold hearings? So they hold a hearing, and say ‘no’. And they hold another hearing, and say ‘no’. And they routinely note that they’ll persist in refusing all such nominees. > > If that goes on long enough, would you ask the same question – not expressing a wish, but just curiosity – about whether _that_ would justify such a court ruling? If the answer to my first hypothetical is as I suspect then no. If the first is insufficient grounds then clearly the second would be. If yes then I would want to flesh out where the line gets drawn. ---
**Author:** ![Jophiel](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jophiel/32/66_2.png) [@Jophiel](https://boards.straightdope.com/u/Jophiel)\ **Post date:** [October 17, 2016, 6:17pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/98 "2016-10-17T18:17:41Z")
[McCain vows](https://politicalwire.com/2016/10/17/bonus-quote-day-30/) that the Republicans will block every Clinton SCotUS nominee. Just in case you were silly enough to believe that “Oh, but we have to let the PEOPLE decide!” nonsense. ---
**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:** [October 17, 2016, 6:43pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/99 "2016-10-17T18:43:54Z")
McCain is running for reelection this year and is scared that the Tea Partiers won’t turn out for him. I suspect he’ll be more reasonable after Nov. 8. ---
**Author:** ![Jophiel](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jophiel/32/66_2.png) [@Jophiel](https://boards.straightdope.com/u/Jophiel)\ **Post date:** [October 17, 2016, 7:16pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/100 "2016-10-17T19:16:41Z")
McCain’s been a bitter crank since he lost '08. If he says he’s going to obstruct from now on, I believe him. [Previous page](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239.md?page=4) [Next page](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239.md?page=6)