# Obama must be allowed to nominate the next SCOTUS Justice **URL:** \ **Category:** Great Debates\ **Created:** [February 13, 2016, 11:23pm UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061 "2016-02-13T23:23:33Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [February 14, 2016, 6:17am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/81 "2016-02-14T06:17:36Z")
> [@madsircool](#): > > No President can make a Supreme Court Justice a recess appointment. The nominee must first be approved by the Senate. This isnt republican Rome people. Whereas we were in 1956? ---
**Author:** ![coremelt](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@coremelt](https://boards.straightdope.com/u/coremelt)\ **Post date:** [February 14, 2016, 6:23am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/82 "2016-02-14T06:23:41Z")
> [@madsircool](#): > > No President can make a Supreme Court Justice a recess appointment. The nominee must first be approved by the Senate. This isnt republican Rome people. According to the Congressional Research Service, President Ronald Reagan made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and, as of January 5, 2012, President Barack Obama had made 32 recess appointments.[13] Recess appointments are authorized by Article II, Section 2 of the U.S. Constitution, which states: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. ---
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [February 14, 2016, 6:42am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/83 "2016-02-14T06:42:58Z")
Justices are principal officers that can only be appointed with the advise and consent of the Senate. Also the SC isnt conducive to placeholding due to the long duration of the process. However, if the Senate was in Dem hands and had they a tacit agreement with Mr Obama, perhaps such a mechanism could work until the formality of a vote. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [February 14, 2016, 6:51am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/84 "2016-02-14T06:51:27Z")
Eisenhower made two recess appointments to the Supreme Court; [William J. Brennan](https://en.wikipedia.org/wiki/William_J._Brennan,_Jr.#Supreme_Court) and [Potter Stewart](https://en.wikipedia.org/wiki/Potter_Stewart#Supreme_Court_service). ---
**Author:** ![Bridget\_Burke](https://avatars.discourse-cdn.com/v4/letter/b/7cd45c/32.png) [@Bridget\_Burke](https://boards.straightdope.com/u/Bridget_Burke)\ **Post date:** [February 14, 2016, 6:55am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/85 "2016-02-14T06:55:13Z")
> [@Frank](#): > > John Marshall was both nominated and confirmed in January 1801 while John Adams was President, after Jefferson had been elected… And he served until 1835, to the chagrin of Jefferson & his Democratic-Republican successors. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [February 14, 2016, 6:59am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/86 "2016-02-14T06:59:03Z")
> [@MEBuckner](#): > > Eisenhower made two recess appointments to the Supreme Court; [William J. Brennan](https://en.wikipedia.org/wiki/William_J._Brennan,_Jr.#Supreme_Court) and [Potter Stewart](https://en.wikipedia.org/wiki/Potter_Stewart#Supreme_Court_service). Whoops–Eisenhower made _three_ recess appointments to the Supreme Court; [Earl Warren](https://en.wikipedia.org/wiki/Earl_Warren#Appointed_to_Supreme_Court) was also a recess appointment. Of course Eisenhower _was_ a successful general who became leader of the Republic. _Ave, Imperator!_ ---
**Author:** ![Dumbguy](https://avatars.discourse-cdn.com/v4/letter/d/2bfe46/32.png) [@Dumbguy](https://boards.straightdope.com/u/Dumbguy)\ **Post date:** [February 14, 2016, 7:33am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/87 "2016-02-14T07:33:19Z")
> [@Clu-Me-In](#): > > Actually, I did like like him as a Justice because, I never for once felt his decisions were political. He really did like interpreting the law per the US Constitution. Pure applesauce. ---
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [February 14, 2016, 7:35am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/88 "2016-02-14T07:35:35Z")
> [@MEBuckner](#): > > Whoops–Eisenhower made _three_ recess appointments to the Supreme Court; [Earl Warren](https://en.wikipedia.org/wiki/Earl_Warren#Appointed_to_Supreme_Court) was also a recess appointment. > > Of course Eisenhower _was_ a successful general who became leader of the Republic. _Ave, Imperator!_ And they all had to be approved by the Senate. ---
**Author:** ![MEBuckner](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mebuckner/32/2896_2.png) [@MEBuckner](https://boards.straightdope.com/u/MEBuckner)\ **Post date:** [February 14, 2016, 7:41am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/89 "2016-02-14T07:41:06Z")
Yes, all recess appointments are temporary and will expire unless they are made permanent by the person subsequently winning Senate approval. I don’t think anyone’s questioning that, are they? The point is, Obama could Constitutionally appoint a temporary Associate Justice, who could totally vote on stuff and affect the balance of power until his or her temporary appointment expired. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 14, 2016, 7:41am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/90 "2016-02-14T07:41:59Z")
Just speaking purely out of political interest here, it would be really stupid for Republicans to block the appointment(delay is another matter, but it’s February, you can’t delay until January). Imagine this scenario: Republicans don’t act on Obama’s nominee. A Republican wins the White House in the election, but Democrats take the Senate. No nominee for you, say Democrats! And then when Breyer, Ginsburg, and Kennedy also pass or retire, no nominees then either. By 2040, all decisions are made personally by Elena Kagan. ---
**Author:** ![davidm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/davidm/32/225_2.png) [@davidm](https://boards.straightdope.com/u/davidm)\ **Post date:** [February 14, 2016, 8:21am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/91 "2016-02-14T08:21:09Z")
And when Elena Kagan passes… ---
**Author:** ![TonySinclair](https://avatars.discourse-cdn.com/v4/letter/t/49beb7/32.png) [@TonySinclair](https://boards.straightdope.com/u/TonySinclair)\ **Post date:** [February 14, 2016, 8:32am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/92 "2016-02-14T08:32:36Z")
> [@Dumbguy](#): > > Pure applesauce. With a hint of jiggery pokery. ---
**Author:** ![Little\_Pig](https://avatars.discourse-cdn.com/v4/letter/l/c57346/32.png) [@Little\_Pig](https://boards.straightdope.com/u/Little_Pig)\ **Post date:** [February 14, 2016, 8:40am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/93 "2016-02-14T08:40:59Z")
> [@Ravenman](#): > > If the Senate doesn’t take up a nomination for Supreme Court justice, the President should examine using his power to call the Senate back into session during every planned recess - which are quite a few during this election year. I like your thinking, Ravenman. ---
**Author:** ![Merneith](https://avatars.discourse-cdn.com/v4/letter/m/57b2e6/32.png) [@Merneith](https://boards.straightdope.com/u/Merneith)\ **Post date:** [February 14, 2016, 9:06am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/94 "2016-02-14T09:06:50Z")
> [@davidm](#): > > And when Elena Kagan passes… She’ll be fine. We’ll get her a scooter and one of those cardiac battery packs, like Dick Cheney has. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [February 14, 2016, 10:05am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/95 "2016-02-14T10:05:06Z")
Obama must be spitting blood. If Scalia had died late this year or early next, it would be Obama himself who would be the obvious choice as replacement. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 14, 2016, 10:15am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/96 "2016-02-14T10:15:48Z")
> [@Quartz](#): > > Obama must be spitting blood. If Scalia had died late this year or early next, it would be Obama himself who would be the obvious choice as replacement. Obama has no understanding of constitutional law. This President has been struck down by the Supreme Court way too many times. Doesn’t even know what a recess is. 9 Supreme Court justices did, he didn’t. ---
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [February 14, 2016, 10:31am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/97 "2016-02-14T10:31:40Z")
> [@MEBuckner](#): > > Yes, all recess appointments are temporary and will expire unless they are made permanent by the person subsequently winning Senate approval. I don’t think anyone’s questioning that, are they? > > The point is, Obama could Constitutionally appoint a temporary Associate Justice, who could totally vote on stuff and affect the balance of power until his or her temporary appointment expired. No. They would have had to hear arguments to vote in a case. ---
**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:** [February 14, 2016, 10:59am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/98 "2016-02-14T10:59:34Z")
> [@MEBuckner](#): > > Yes, all recess appointments are temporary and will expire unless they are made permanent by the person subsequently winning Senate approval. I don’t think anyone’s questioning that, are they? > > The point is, Obama could Constitutionally appoint a temporary Associate Justice, who could totally vote on stuff and affect the balance of power until his or her temporary appointment expired. So long as the Senate conducts pro-forma sessions every three days then Obama cannot constitutionally make a recess appointment. The issue was decided unanimously by the Supreme Court in _[NLRB v. Canning](http://www.scotusblog.com/case-files/cases/national-labor-relations-board-v-noel-canning/)_ a mere two years ago. And so long as those pro-forma sessions continue I’m not sure the President is able to exert Article II authority to call them into session. He can try. The Senate can refuse and what? Obama takes the matter to the courts? And this would play out in time for confirmation hearings for an Obama nominee? Should Obama try to force the point it would play into the Republican mantra of Obama overreaching his authority. And even if the Senate is in session, there is no authority the for President to force the Senate to vote on a nominee in any particular time frame. Net result, the Republicans won’t vote on a nominee unless they want to. ---
**Author:** ![Knorf](https://avatars.discourse-cdn.com/v4/letter/k/58956e/32.png) [@Knorf](https://boards.straightdope.com/u/Knorf)\ **Post date:** [February 14, 2016, 11:04am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/99 "2016-02-14T11:04:27Z")
Blocking Obama’s SCOTUS nomination would be deeply stupid for the GOP. It’d be akin to their government stoppage over the debt ceiling: red meat for their hardcore constituency; they can tie themselves in knots justifying it; but in the end they will lose substantial political capital. Obama will long strong and presidential, and they will look like petty, whining children. Status quo, in other words. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 14, 2016, 11:26am UTC](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061/100 "2016-02-14T11:26:23Z")
538 has an interesting article on how Obama won’t be able to appoint a liberal to replace Scalia: > **[Obama Won’t Be Able To Replace Scalia With A Justice As Liberal As Sotomayor](https://fivethirtyeight.com/features/obama-wont-be-able-to-replace-scalia-with-a-justice-as-liberal-as-sotomayor/)** > > The death of Supreme Court Justice Antonin Scalia today set off a scramble in a deeply polarized Washington over his replacement on the court. Within hours of t… [Previous page](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061.md?page=4) [Next page](https://boards.straightdope.com/t/obama-must-be-allowed-to-nominate-the-next-scotus-justice/746061.md?page=6)