# 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:** 7
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 18, 2016, 12:07pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/121 "2016-10-18T12:07:30Z")
There’d be no crisis. The CJ, and everyone else, could simply laugh it off. The President could do absolutely nothing. Once confirmed, a Justice is impervious to everything but impeachment, which is already possible and has actually been used. ---
**Author:** ![Johnny\_Bravo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_bravo/32/493_2.png) [@Johnny\_Bravo](https://boards.straightdope.com/u/Johnny_Bravo)\ **Post date:** [October 18, 2016, 12:43pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/122 "2016-10-18T12:43:38Z")
I wonder how the sitting conservative justices would feel about continued obstructionism. At the end of the day, it’s a pretty big threat to the authority of the judiciary. If Clinton could convince even a single conservative justice to start making noises about retiring in disgust I bet the wheels would get suddenly greased. ---
**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 18, 2016, 1:41pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/123 "2016-10-18T13:41:53Z")
More likely, I think, SCOTUS will revisit _Canning_ and say, in effect, if the Senate is going to always be in session to render the President’s recess-appointment power a nullity, it has to _always_ be in session. > [@ElvisL1ves](#): > > …Once confirmed, a Justice is impervious to everything but impeachment, which is already possible and has actually been used. Just once as to the Supremes, and it didn’t go well: [Samuel Chase - Wikipedia](https://en.wikipedia.org/wiki/Samuel_Chase) ---
**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:** [October 18, 2016, 2:50pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/124 "2016-10-18T14:50:52Z")
> [@YogSothoth](#): > > That’s kind of weird. So is this correct: Let’s say Clinton wants to nominate Kagan as chief. She’d have to submit her nomination to the Senate and have her confirmed as chief? And if the Senate votes no, Kagan goes back to being a regular justice? That is [exactly what would happen](https://en.wikipedia.org/wiki/Abe_Fortas). Chief Justice and Associate Justice are simply different job classifications based on the theory that the Constitution mentions a Chief Justice specifically. However, the method that’s used to confirm one isn’t specified in the Constitution - it could have been established for the Chief Justice to rotate every year, for instance, or for the Justices themselves to choose the Chief Justice. But we’ve been doing it this way, so that’s just the way it’s done now. I suppose that it’s really not a Constitutional crisis, but it could be a _political_ crisis if the parties absolutely refuse to consider any nominees of the other party; it’s solvable by the voters if they care enough. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [October 18, 2016, 3:02pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/125 "2016-10-18T15:02:33Z")
> [@Ambrosio\_Spinola](#): > > I suppose that it’s really not a Constitutional crisis, but it could be a _political_ crisis if the parties absolutely refuse to consider any nominees of the other party; it’s solvable by the voters if they care enough. I disagree. It IS a constitutional crisis precisely because the voters don’t care enough and/or are uninformed or misinformed. If the Republicans say “we will block any Supreme Court nomination made by any Democratic president” then we indeed have a crisis. Personally I think cooler heads will prevail and there are enough Republicans with a sense of decency that there will be no blocking of Clinton nominees. ---
**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 18, 2016, 3:06pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/126 "2016-10-18T15:06:33Z")
> [@YogSothoth](#): > > That’s kind of weird. So is this correct: Let’s say Clinton wants to nominate Kagan as chief. She’d have to submit her nomination to the Senate and have her confirmed as chief? And if the Senate votes no, Kagan goes back to being a regular justice? That’s correct. Chief Justice is a separate position from Associate Justice, so the President has to nominate and the Senate confirm. It doesn’t happen very often, because that means two confirmation hearings, rather than just one (one for CJ, and then another nomination for the now vacant position of Associate Justice). I think the only two times where an Associate Justice was nominated to be Chief were Stone in 1941 and Rehnquist in 1986. Once the Senate confirmed Rehnquist, Reagan nominated Scalia to the vacant Associate Justice seat, and there was a separate hearing process for Scalia. ---
**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:** [October 18, 2016, 3:40pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/127 "2016-10-18T15:40:55Z")
> [@BobLibDem](#): > > I disagree. It IS a constitutional crisis precisely because the voters don’t care enough and/or are uninformed or misinformed. If the Republicans say “we will block any Supreme Court nomination made by any Democratic president” then we indeed have a crisis. Personally I think cooler heads will prevail and there are enough Republicans with a sense of decency that there will be no blocking of Clinton nominees. Could be; although I’d associate a Constitutional crisis with political actors’ explicit violation of its terms; trying to secede, ordering summary executions, suspending elections, etc. If a political party is running on the specific campaign of blocking their opponents’ court picks, that’s a violation of our operating political norms and pretty bad, but it doesn’t violate the Constitution. But I actually welcome McCain’s statement here, because if that’s how it’s going to be then they should run on that platform openly. If voters elect a Democratic president and also a Republican Senate sworn to block all her appointments, then we can’t say we were surprised. ---
**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 18, 2016, 3:55pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/128 "2016-10-18T15:55:55Z")
> [@Northern\_Piper](#): > > …I think the only two times where an Associate Justice was nominated to be Chief were Stone in 1941 and Rehnquist in 1986. > > Once the Senate confirmed Rehnquist, Reagan nominated > Scalia to the vacant Associate Justice seat, and there was a separate hearing process for Scalia. Edward White was also “promoted” from associate to chief (1910). John Rutledge (recess-appointed as chief in 1795, but rejected later that year by the Senate) and Charles Evans Hughes (appointed in 1930) had served as associates, left the court, and then were later appointed chief. President Reagan simultaneously nominated Rehnquist as chief, and Scalia to fill his likely-to-be-vacated associate spot. Their hearings were indeed separate (and Scalia had a much easier time of it): [http://media.breitbart.com/media/2016/02/Reagan-Scalia-Rehnquist-RON-EDMONDS-AP.jpg](http://media.breitbart.com/media/2016/02/Reagan-Scalia-Rehnquist-RON-EDMONDS-AP.jpg) ---
**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 18, 2016, 6:36pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/129 "2016-10-18T18:36:56Z")
Thanks, had. forgotten about those examples (although Hughes was a bit different, since he resigned as Associate Justice to run for the presidency, rather than appointed CJ while on the Court). Interesting comparative point: in Canada, the Chief Justice is almost invariably appointed from the puisne justices of the Court. There’s only been one Chief Justice appointed from outside the Court (other than the first CJ, of course). ---
**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 18, 2016, 6:51pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/130 "2016-10-18T18:51:15Z")
Both Rutledge and Hughes served on the court but then left before returning as Chief Justice. Neither was appointed CJ while on the court. There are mixed views as to the advisability of appointing a Chief Justice from among current members of the court. Pro: confirmation by the Senate may be easier; they know the ropes and are ready to go. Con: there might be some resentment among their peers, or they might already be members of this or that faction and their elevation would cause tension. My own opinion is that, assuming the new CJ is smart and knows the law, personality is the biggest factor in determining if he (someday she) will be able to lead the court. Schmoozers like Marshall, Taft and Warren do best. ---
**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 18, 2016, 7:08pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/131 "2016-10-18T19:08:12Z")
According to “The Brethren”, Nixon was considering Potter Stewart to replace Earl Warren, but Stewart met Nixon privately and took himself out of the running. Stewart apparently thought that internal appointments were bad for the dynamic on the Court, and mentioned that the appointment of Stone had caused internal tensions. ---
**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 18, 2016, 7:30pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/132 "2016-10-18T19:30:08Z")
Ah, I’d forgotten that. _The Brethren_ is a great book - and Stewart was a major source for the authors! I often recommend Jeffrey Toobin’s _The Nine_ as a contemporary _The Brethren_. ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [October 18, 2016, 8:28pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/133 "2016-10-18T20:28:50Z")
Meanwhile, if the Republicans do try to block all Democratic nominees, when the Democrats do it too (and they would have to, because otherwise the court would only be Republican nominees) they will be chastised as “both sides do it”. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 18, 2016, 9:04pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/134 "2016-10-18T21:04:50Z")
> [@Northern\_Piper](#): > > I think the only two times where an Associate Justice was nominated to be Chief were Stone in 1941 and Rehnquist in 1986. Abe Fortas, by LBJ in 1968. The nomination failed in the Senate and Fortas resigned from the Court altogether. ---
**Author:** ![muldoonthief](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muldoonthief/32/3188_2.png) [@muldoonthief](https://boards.straightdope.com/u/muldoonthief)\ **Post date:** [October 18, 2016, 9:16pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/135 "2016-10-18T21:16:19Z")
> [@ElvisL1ves](#): > > Abe Fortas, by LBJ in 1968. The nomination failed in the Senate and Fortas resigned from the Court altogether. According to [wikipedia](https://en.wikipedia.org/wiki/Abe_Fortas#Ethics_scandal_and_resignation), he resigned a year later due to an ethics scandal, not because he wasn’t confirmed as Chief Justice. ---
**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 18, 2016, 10:25pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/136 "2016-10-18T22:25:09Z")
Good example, thanks. ---
**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 18, 2016, 11:32pm UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/137 "2016-10-18T23:32:41Z")
A constitutional crisis is not when someone does something against the Constitution. It’s when the Constitution doesn’t offer any guidance on what to do, or offers conflicting guidance. This should be very rare or nonexistent in a professionally-written constitution, but ours was written by amateurs. ---
**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 19, 2016, 1:32am UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/138 "2016-10-19T01:32:04Z")
FWIW, I had the chance to meet and speak with a staff lawyer of the Senate Judiciary Committee at a seminar tonight. She said there’s plenty of speculation that Garland might be confirmed in the lame-duck session after Election Day, or between the convening of the new Senate on Jan. 3 and the inauguration of the new President on Jan. 20, but that it would be a real challenge, since there’s been no vetting, questionnaires or hearings by the SJC. Possible, though. She also thought that Hillary isn’t focused on the nomination at all, not at all surprisingly, given the demands of the campaign. She doesn’t think Hillary is opposed to the nomination, and certainly wants Obama to have his nominee fairly considered, but will quite possibly want to submit her own nomination after Jan. 20, if Garland isn’t confirmed by then. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [October 19, 2016, 2:16am UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/139 "2016-10-19T02:16:41Z")
IOW, those who talk don’t know, etc. ---
**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:** [October 19, 2016, 2:41am UTC](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239/140 "2016-10-19T02:41:26Z")
> [@Elendil\_s\_Heir](#): > > FWIW, I had the chance to meet and speak with a staff lawyer of the Senate Judiciary Committee at a seminar tonight. She said there’s plenty of speculation that Garland might be confirmed in the lame-duck session after Election Day, or between the convening of the new Senate on Jan. 3 and the inauguration of the new President on Jan. 20, but that it would be a real challenge, since there’s been no vetting, questionnaires or hearings by the SJC. Possible, though. It could be an interesting step back from the brink to just have a hearing and confirm him in an afternoon. There’s really no serious questions about his qualifications, he’s been on the bench for a long time and is basically the 10th most important judicial figure in the country already. The only objections to him are political - not that a political objection doesn’t count or anything. But traditionally there was much less circus around these choices. This would only happen if a Democratic Senate is going to be sworn in on 1/20 though. I don’t see Mitch McConnell ever bringing up a Democratic nominee for a vote as long as he holds the chamber. [Previous page](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239.md?page=6) [Next page](https://boards.straightdope.com/t/if-scotus-gridlock-continues-after-the-election-what-could-a-president-clinton-do/762239.md?page=8)