I was reading a therad in Great Debates and got to wondering,
What if a justice retires or dies and the President is very Conservative and the Senate is Liberal. (I’ll just say it like that but it could be the other way around for my purposes).
What if the President will only nominate “conservative” people and the Senate simply refuses to confirm them.
What would happen to the Court, would it just continue to operate with less than 9 members? I guess since their is no constitutional requirement for number of justices it could be any number right?
In reality I guess political pressures would demand the President nominate someone less conservative, but in theory a President could spend all four years of his term getting his choices shot down right?
Eventually one side would have to give. If I had to guess, I’d say that it would be the Senate, because the President has the opportunity to use recess appointments, which would cause all kinds of hell and push the Senate to confirm somebody who might be less objectionable.
What would be interesting would be the possibility of tie votes on controversial issues. Depending upon who is doing the obstructing in the Senate, some of those ties could cause some Senators to lose their seats, which would undoubtedly go a good ways to breaking the Senatorial deadlock.
It’s happened a few times, starting in the 1790s. About 20% of nominees have not been confirmed, according to Elliot E. Slotnick in The Oxford Companion to the Supreme Court of the United States (p.767). Justice Abe Fortas was r5ejected for the Chief Justiceship in 1968 (and ended up resigning); Nixon nominees Clement Haynsworth and G. Harrold Carswell were rejected in 1969 and 1970 respectively, and Robert Bork was likewise denied confirmation in 1987.
The Supreme Court has often operated with fewer justices – any time there’s an unexpected vacancy and the court is in session, for example, and whenever a justice recuses himself from a case. Federal law requires a quorum of six members in order for the Supreme Court to hear a case, so they can do without a confirmation for some time.
The President also has the power of recess appointment. If the Senate is out of session, he can make an appointment without the consent of the Senate, which expires at the end of the Senate’s next term.
28 USC 1 provides: “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.”
What this means is that if there are at least six justices on the Court, it will operate just fine.
It’s pretty common to have an eight judge Court after one justice has resigned, died or become disabled. For instance a few years ago Justice O’Connor resigned, but she said her resignation would take effect when her successor was appointed, and then Chief Justice Rehquist died. After Renquist’s death, the court operated with eight justices, with Justice Stevens, the senior associate justice serving as acting Chief Justice. John Roberts had originally been appointed to fill O’Connor’s seat, but when Renquist’s had died before Roberts had been confirmed, he was appointed to the Chief’s seat and quickly confirmed. Later that year Samuel Alito was appointed to fill O’Connor’s seat, and immediatly upon his confirmation he came in and O’Connor left. It is not unprecedent to have two vacancies on the court, but I can’t recall there having been more than that.
Even more common is a justice not sitting on a particular case because of a conflict of interest or temporary inability (usually medical) to sit.
Where there are an even number of justices, if they split evenly on a decision, the ruling by the court below stands. Because the Supreme Court is almost exclusively an appellate court, if there were not to be quorum of justices, it would also be the case that the ruling by the courts below would stand as the Supreme Court would be unable to act to review the cases. I guess petitions for certiorari (applications to have the Court hear a case) would simply pile up until there were a quorum to hear them. The very few original jurisdiction cases that they hear are usually things like border or water right disputes between states, and those almost always take years, so it wouldn’t really screw things up there.
If the President and Congress were really at loggerheads, the President might use the recess apppointment power to temporarily (until the end of the next Congressional session) appoint justices to the Court while Congress was in recess, but that would carry some substantial political risks.
Although there have been several when one or more Presidential appointments get rejected by the Senate (or withdraw under pressure fefore being rejected), you are correct that the President usually moderates his choices after rejections and the Senate gets a little more foregiving after having forced choices out, eventually coming to an consensus choice.
The Senate decides when its out of session though, so they could avoid this simply by not officially going into recess until the matter is resolved. Indeed, I believe that the Senate has avoided going into recess for for the last two years to prevent Bush from making any such appointments.
I don’t think either side has a intrinsic advantage in this sort of fight. Basically, whichever side thinks they’re getting the worst of it in the public eye will fold first so as not to damage their image amongst the voters.