scotus appointment by lame duck prez?

Is it the case that if, say, Stevens were to die today that congress could or would put off a vote on his replacement until the next President was inaugurated?

Is this purely a matter of politics, or is there some sort of limit on a lame luck president’s ability to nominate a Scotus justice? If Bush had a majority of the votes in the Senate (a scotus appointment needs just 51, right?) and he had lost that majority in the Fall election, could he rush through a SC appointment if a Justice died the middle of January? Could the Senate get away with refusing to confirm Bush’s choice if the Dems had the majority and there were, say, a year left on Bush’s final term?

If all this stuff is political–if we could have a SC appointment confirmed on the morning of January 20th under some circumstances, and another one delayed for years under others, as I suspect is the case–what’s the most extreme example of SC appointments by lame ducks being approved and delayed?

I’m not an expert on the Supreme Court, but it seems to me that with all the stuff that’s going on right now, filling a vacancy on the Supreme Court would fit fairly low on the legislative agenda. They can go a few months with only 8 members, especially considering that they’re not always in session.

I was thinking about this the other night, actually, although I didn’t figure out the answer. If Stevens died today, Bush would be able to make a recess appointment because Congress is busy with electioneering. The new Justice would have to be confirmed within the next year, or else the his or her term would simply expire and there would be a new vacancy. Presumably that’s how it would happen.

The 111th Congress will convene on Jan. 3, 2009, so if a Justice died between then and the inauguration on the 20th, I assume they would either vote any nomination down or just not take up the issue.


A number of issues here:

The President is free to nominate someone to a vacant Supreme Court seat right up until his last hour in office. If the nomination is made before January 3, it would be up to the outgoing Senate to consider it (or refuse to do so – the Senate is not required to vote on the nomination) It would require 60 votes to overcome a filibuster, so unless the President’s party has an overwhelming majority it is unlikely that the Senate would act. If the outgoing Senate did not act, the nomination would expire at the end of the Congress.

Between January 3 and January 20, the President’s nomination would be submitted to the new Senate. This Senate is free to vote on the nomination, or sit on their hands and do nothing. Interestingly, the nomination would still remain pending even when the new President comes into office. However, the new President would presumably withdraw the nomination and submit a candidate of his own choosing.

As **Marley23 **points out, there is the issue of recess appointments as well. At any point between when the Senate adjourns sine die at the end of the two-year term and when they reconvene in January, the President could make a recess appointment to the Court. Such an appointee would serve through the end of the next session of Congress – i.e. until the Senate adjourns at the end of 2009. At that point the Justice’s appointment would expire and he would lose his seat unless renominated and confirmed or through receiving another recess appointment.

To prevent this scenario, the Senate could refuse to adjourn sine die and keep the Senate in session right up until the Senate reconvenes in January. They’re actually doing this now – every three days, the presiding officer briefly calls the Senate to order then immediately adjourns for another three days. As long as the Senate can claim to have met once every three days (however briefly), there’s technically no recess that would enable the President to make a recess appointment.

Whew! :smiley:

John Marshall was nominated by John Adams in January 1801, three months before he left office in March…but the Senate actually approved him the week after he was nominated. The Good Ol’ Days, I guess.

That was a situation where the outgoing president and Senate were of the same party, and the incoming president and Senate were of the opposite party, so there was every incentive to act quickly. In fact, the outgoing Federalists “packed” the judiciary by creating and confirming a boatload of federal judges and justices of the peace–they were in such a hurry that they didn’t even get all of the commissions delivered in time, leading to Marbury v. Madison.

Hmmm…I thought the new Congress always took office in early January going back to the beginning…color me educated.

No, the transition date was contemporaneous, on March 4, until the Twentieth Amendment took effect in 1935. Not only that, but the outgoing lame-duck Congress would meet in December and would almost always sit in session through March 3.

The change to staggered (January 3/20) inaugaration changed a number of matters, as the incoming Congress now has responsibility for counting the electoral votes and for balloting in the event of lack of majority in the Electoral College–as well as for confirming (or more likely, ignoring) any last-minute presidential appointments.

I wonder if Cheney could put an end to this. In other words, be present in the Senate chamber and refuse to call the Senate to order, and refuse to allow anyone else to act as presiding officer since he is there…

An interesting scenario. The Senate majority leader and a handful of pals just might decide to meet in the Old Senate Chamber to transact a little business there. In any event, the decisions of the presiding officer (either Vice President as President of the Senate, President pro tem, or Acting President Pro Tem) can be overturned by a majority vote of the Senate, so I don’t think Cheney could prevent a meeting of the Senate if the senators were determined to meet.

No, absolutely not. Congress hasn’t adjourned sine die, and no amount of game-playing by the presiding officer will mean that it has adjourned sine die.

Right. But wouldn’t they have to actually be in session to appeal from the decision of the chair?

This ploy wouldn’t work forever, because Cheney has to sleep sometime, but on day 3 when they are ready for their pro forma session to keep a recess appointment from happening, there is Cheney sitting in the President’s chair. He stalls for the rest of the day. After 3 days and one second have passed, Bush makes his recess appointments, then Cheney goes home.

But when he’s stalling in the Senate president’s chair, the Senate is in session, so the President cannot make a recess appointment.

Constitutional crises don’t come any bigger than one branch of government denying another branch its basic ability to function. So if the Veep were to assert a right to be able to keep the Senate from convening, I doubt there would be much discussion over the minutia of the Senate rules of order. I think it’s much more likely that the Capitol would be ringed by tanks and legislators would be gasping for breath in clouds of tear gas.

But, I will point out a couple of things. When the Senate moves to adjourn (which they must do any time they’re not in session, even just until the next morning), that motion will specify the date and time when the Senate will reconvene. At that time, the presiding officer will gavel the Senate to order. Until that gavel bangs, no member of the Senate can assert any rights or really do anything official – until they are convened, they’re just a bunch of guys standing around on the Senate floor. So the Veep could refuse to call the Senate to order, but there’s really nothing he could do to prevent the President Pro Tem or his designee from doing so.

Once the Senate is convened, a Senator MIGHT be able to raise a point of order that the President Pro Tem did not have the standing to call the Senate to order. The Veep cannot do this (he cannot offer motions or even vote on anything unless it’s a tie) so he would need an ally in the Senate. The Chair (which would be the Veep – once the Senate is convened, he’s free to tell the President Pro Tem to get out of his chair) would rule on the point of order, presumably upholding it. However, the Chair’s ruling is subject to an appeal by any Senator, with a simple majority needed to overturn the Chair’s ruling.

But again, this is getting into territory that the rules never anticipated, and my basis for the above procedural outline is on a bit of shaky ground. My best advice to legislators in this scenario remains to bring their gas masks.

I have nothing in particular to pray to, but if I did, I’d be praying that all SCOTUS judges remain healthy enough to stay in their positions until at least Jan. 20. The above scenarios are the stuff of great novels and frightening citizenhood. C’mon, November.

I just hope somebody’s briefed the pelicans.

Sure he could. As President of the Senate, he could order the Sgt. at Arms to arrest the President Pro Temp for attempting to supercede his authority by calling the Senate into session while he (Cheney) is present. While the VP is in the chamber the PPT has no authority at all.

C’mon, January!