Questions about SCOTUS nominations

Yeah, I know there are a lot of threads about this, but I’ve got a few questions I can’t find the answer for.

If POTUS nominates someone and the Senate refuses to hold hearings, does the nomination remain in force after Obama leaves the White House?

What if they hold hearings, but can’t reach agreement on rejecting the candidate? Does the process continue after Obama is gone?

Does the Senate have to provide specific reasons as to why they reject someone? Can the candidate then sue them for slander/libel if the reasons impugn his/her character?

What are the possible legal repercussions if the Senate refuses to conduct business as mandated by the Constitution?

I always thought that the nomination was only effective through the end of the Congressional session. Wiki says this about Obama’s appointments, so I guess this is correct. Not sure the “authority” for this though.

If Obama is gone, the Congress is reconstituted and they must start anew.

No. and No. Senators are immune under the “speech and debate clause” from civil suits like that.

I don’t think the court’s would get involved. The voters, if they cared, could express their displeasure at election time.

Right, all pending nominations and legislation vaporize at the end of a congressional session, no matter how far they got in the legislative or executive process (short of final disposition).


This is just a reminder to keep all responses strictly factual. There are plenty of other threads in which you can express your opinions about the present situation. Political jabs or rants may be subject to a warning.

General Questions Moderator

What political jabs? The thread seemed pretty tame to me.

Preemptive strike.

I see. I thought my comments were being misconstrued somehow.

Apologies if my post was misinterpreted. The thread so far is fine. Since I just had to close another thread about the subject due to political jabs, and this is currently a hot-button issue, I thought it would be good to issue a preemptive reminder of GQ policy.

Carry on.

Yeah, not looking to stir up any simmering aggression. My wife and I were talking at breakfast about this and realized that we have little idea how the process works, as it happens so seldom. And this is a unique situation, what with the president in his last year.

It seems that the two houses of Congress have pretty well protected themselves from legal repercussion over the years. The only recourse for poor- or non-performance would be ouster by voters (since recall is also prohibited), which is highly unlikely in most cases, I’m sure, as their constituencies likely agree with their stances.

It would also appear that my questions have been answered, so thank you.

Since this is GQ, it isn’t Congress that has protected themselves. The Constitution is the source of these protections, which have origins in immunities enjoyed by Parliament.

Badly stated on my part.

Oddly enough, the constitution gives the president only 10 days to sign or veto a bill (failing which it becomes law unless congress has in the meantime adjourned–this is called a pocket veto), but gives the senate unlimited time to confirm or refuse a presidential nomination. This can work both ways in the absence of 60 senators of one party.

I am not sure what you mean by “unique situation”, so I will just say that there is nothing unique about a President nominating a justice in the last year of their term. The only unique thing about this occasion is the Senate’s potential obstruction of a nominee to force it to the next term. I don’t believe that has ever happened before.


That page only discusses vacancies since 1900. If you go back to the 19th century, there were some cases: a different blog

Did Obama have to renominate Loretta Lynch last January? She was nominated in November 2014 but not confirmed until April 2015, so her nomination would have expired if that’s the case.

The House is reconstituted every 2 years, but the Senate is a continuous body where nothing automatically expires, including nominations.

The rules of the Senate continue from session to session, but nominations do not. We know this because Senate Rule XXXI says:

“Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President…”

Hopefully this link works. The nomination the Senate acted upon was sent on January 7, 2015.

I was under the impression that the last time it happened was under FDR, but I see that’s not the case.

The Constitution is clear on the fact that no Supreme Court Justice can take his seat without the consent of the Senate (barring the interesting case of a recess appointment), but is otherwise silent on what action the Senate might or might not take.

Hence, as far as we know, the Senate is not constitutionally required to do anything at all if the President nominates a candidate they don’t like. They don’t have to discuss it, vote on it, or even acknowledge it, ever. It’s true the rules of the Senate say the President has to re-nominate a candidate if they don’t consider it within some period of time, but of course since the Senate can change its rules any time it likes, this isn’t binding on the Senate itself. It is an interesting question whether they could, constitutionally, confirm a nomination after the nominating President leaves office, dies, is impeached, whatever.

The President’s sole constitutional recourse if he doesn’t like the Senate’s action (or inaction) is to nominate someone else they like better. Conversely, the Senate cannot itself consider a candidate unless and until the President nominates him, no matter how many broad hints they may throw out.

Interestingly, there is a requirement in the Constitution that the President perform his duties (the “faithful execution” clause in Article II, Section 3, as well perhaps as the prescribed form of the oath of his office), but there is no such requirement on the Senate. Hence it may be unconstitutional for the President to refuse to nominate candidates, but not unconstitutional for the Senate to refuse to consider them. An interesting question arises in the case that the Senate refuses to consider a nomination – is the President constitutionally required to nominate someone else after a decent interval? Or can he refuse on the grounds that his first nomination has not been explicitly rejected? (I would guess that if a candidate is explicitly voted down the President is constitutionally required to present another nominee.)