# What options are available for President Obama w.r.t. nominating a replacement for Scalia?
**URL:** https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069
**Category:** Factual Questions
**Created:** [February 13, 2016, 11:48pm UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069 "2016-02-13T23:48:42Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)
#### Post date: [February 13, 2016, 11:48pm UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/1 "2016-02-13T23:48:42Z")
Must he do _anything_ for the present, or can he simply leave things for his successor (if he is confident that the next POTUS will be Hillary or Bernie)?
OTOH, if he and his team believe there’s a significant chance of a Republican victory, they would probably want to nominate someone right away. What delaying tactics could the Republicans use? Is there a time limit or some other ‘rule’ that compels an appointment be made to the SCOTUS to replace a justice who’s died (or incapacitated etc.)
In the meanwhile, with Scalia out of the equation, it would seem that the balance on the Court has shifted leftward. And, critically, until Scalia has been replaced, the likelihood of a ‘liberal’ majority to prevail in any given case has increased markedly. So, even if the Republicans delay things, we will still see a (potentially very short-lived) liberal regime on SCOTUS.
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### Author:  [@dolphinboy](https://boards.straightdope.com/u/dolphinboy)
#### Post date: [February 14, 2016, 12:12am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/2 "2016-02-14T00:12:04Z")
I don’t see any reason why President Obama would wait for the next president, regardless of their party affiliation, to appoint a replacement. He’s been waiting a long time for the chance to influence the Supreme Court.
The Senate has to approve the appointment, and the Republicans will try their best to stop any one of Obama’s choices from being appointed in hopes that future President Trump will be able to pick someone of his choosing.
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### Author:  [@Horatio\_Hellpop](https://boards.straightdope.com/u/Horatio_Hellpop)
#### Post date: [February 14, 2016, 12:14am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/3 "2016-02-14T00:14:14Z")
He can make a nomination at will, and use his considerable popularity to rally public support for the nominee. What you **really** want to ask is, “How can he grease this through the obstructionists in the Senate?”
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### Author:  [@Iggy](https://boards.straightdope.com/u/Iggy)
#### Post date: [February 14, 2016, 12:43am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/4 "2016-02-14T00:43:01Z")
First, Obama doesn’t have to appoint someone right away. It is highly doubtful that the Democrats would argue his declining to appoint runs afoul of the Take Care clause and the Republicans sure won’t.
The Republicans hold a majority in the Senate. They could delay things in committee and on the full Senate floor as long as they want. But play it wrong and it becomes a rallying cry for those bemoaning Washington gridlock.
There is no time limit for the appointment to be made. And no time limit by which it must be considered. There will not be a full recess of Congress sufficient for Obama to make a recess appointment before the election.
Any cases with a 4-4 tie will now result in the lower court ruling being upheld, though no nationwide precedent will be set. Any ruling with a 5-3 or greater majority will still set precedent.
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### Author:  [@Jim\_s\_Son](https://boards.straightdope.com/u/Jim_s_Son)
#### Post date: [February 14, 2016, 2:31am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/5 "2016-02-14T02:31:18Z")
In June 1968 chief justice Earl Warren announced he was retiring and wanted Lyndon Johnson to nominate his successor, not Richard Nixon who look likely to win in November. Johnson nominated associated justice Abe Fortad to replace Warren. Despite the Democrats controlling the Senate, there was widespread opposition to Fortas based on his liberal votes and consulting with LBJ while he was on the bench. Ultimately they couldn’t stop the filibuster and Fortas withdrew his name. Nixon won and nominated Warren Burger as the new chief justice. Fortas later resigned from the court over some questionable fees he earned.
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### Author:  [@Phu\_Cat](https://boards.straightdope.com/u/Phu_Cat)
#### Post date: [February 14, 2016, 4:38am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/6 "2016-02-14T04:38:39Z")
Good golly, Miss Molly, Liberalism hasn’t done enough damage to this country in the last seven years and you want oBAMA to appoint another judge to the Supreme Court that is now leaning heavily to the left after Scalia’s death? Have you looked at how our allies talk about us? Have you listened to how our enemies talk about our military? That’s because the enemy **knows** our military isn’t near as strong as it needs to be. KNOWS IT!!! Are you either in a rush to become Muslim or to have you head cut off? Don’t forget what they like to do to your daughters after they are born. And ladies, forget about having a career because you won’t be leaving the house without a male escort any more.
You might want to keep in mind, when America is stongest, the world is the safest.
Phu Cat
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### Author:  [@coremelt](https://boards.straightdope.com/u/coremelt)
#### Post date: [February 14, 2016, 4:43am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/7 "2016-02-14T04:43:56Z")
Obama has already announced he is going to nominate a replacement. I’d expect him to do it ASAP especially since the Supreme Court is currently in session.
> **[Read: President Obama vows to nominate replacement to Justice Scalia](https://www.vox.com/2016/2/13/10987500/president-obama-antonin-scalia)**
>
> Republicans have said the Supreme Court seat should not be filled until after the upcoming presidential election.
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### Author:  [@Senegoid](https://boards.straightdope.com/u/Senegoid)
#### Post date: [February 14, 2016, 4:53am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/8 "2016-02-14T04:53:10Z")
If Obama refrains from nominating a justice, or if the Senate obstructs his nomination to death, that could cut either way for the Republicans. They are taking a gamble on whether a Democrat or Republican will be president next.
If we have a Republican president, and perhaps a Republican-controlled Senate, then they can put their boy in there.
But if there is a Democrat president, and even worse for Republicans, a Democrat-controlled Senate, then all the leverage they currently have in the Senate will totally evaporate. Given the fear, in “establishment” Repub circles that Trump or Cruz will be the likely candidate, and that the same will get totally thrashed in November, – it follows that they are taking quite a gamble with this posture.
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### Author:  [@HMS\_Irruncible](https://boards.straightdope.com/u/HMS_Irruncible)
#### Post date: [February 14, 2016, 4:56am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/9 "2016-02-14T04:56:09Z")
Obama has a constitutional responsibility to nominate a replacement. If he doesn’t, he’s not doing his job. However if he does, it’s obstruction as far as the eye can see.
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### Author:  [@coremelt](https://boards.straightdope.com/u/coremelt)
#### Post date: [February 14, 2016, 5:12am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/10 "2016-02-14T05:12:22Z")
> [@HMS\_Irruncible](#):
>
> If he doesn’t, he’s not doing his job. However if he does, it’s obstruction as far as the eye can see.
Sure but he has options. He can call the senate back into session every single recess until they vote on a candidate. And he can make huge political capital by pointing out that the Supreme court needs nine members to function and the GOP is refusing to let it function.
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### Author:  [@HMS\_Irruncible](https://boards.straightdope.com/u/HMS_Irruncible)
#### Post date: [February 14, 2016, 5:14am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/11 "2016-02-14T05:14:30Z")
> [@coremelt](#):
>
> Sure but he has options. He can call the senate back into session every single recess until they vote on a candidate. And he can make huge political capital by pointing out that the Supreme court needs nine members to function and the GOP is refusing to let it function.
I hope it works out like that. Anyone’s guess at this point. I’m willing to let the man’s body cool before the games begin 🙂
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### Author:  [@coremelt](https://boards.straightdope.com/u/coremelt)
#### Post date: [February 14, 2016, 5:16am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/12 "2016-02-14T05:16:40Z")
> [@HMS\_Irruncible](#):
>
> I hope it works out like that. Anyone’s guess at this point. I’m willing to let the man’s body cool before the games begin 🙂
The GOP isn’t. Cruz tweeted within 24 minutes of the death announcement that Obama should not appoint a replacement. Disgusting.
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### Author:  [@Jim\_s\_Son](https://boards.straightdope.com/u/Jim_s_Son)
#### Post date: [February 14, 2016, 5:26am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/13 "2016-02-14T05:26:44Z")
Keep in mind, while the Constitution provides for a Supreme Court, it doesn’t specifically say there should be nine members. That is done by legislation. It’s especially convenient now since the Court is fairly evenly divided. Could the Republicans be blamed if they don’t approve of who Obama nominates? sure. But I remember two of Nixon’s nominees for a seat, Haynsworth and Carswell, being rejected by a Democratic controlled Senate. I don’t remember anyone from the left saying the Senate was obstructing or refusing to let it function. It was “Senate’s constitutional right to advise and consent”.
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### Author:  [@Flyer](https://boards.straightdope.com/u/Flyer)
#### Post date: [February 14, 2016, 6:19am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/14 "2016-02-14T06:19:41Z")
> [@HMS\_Irruncible](#):
>
> Obama has a constitutional responsibility to nominate a replacement. If he doesn’t, he’s not doing his job. However if he does, it’s obstruction as far as the eye can see.
OR, he could propose legislation to reduce the number of justices on the Court.
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### Author:  [@Antinor01](https://boards.straightdope.com/u/Antinor01)
#### Post date: [February 14, 2016, 6:20am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/15 "2016-02-14T06:20:55Z")
> [@Phu\_Cat](#):
>
> Good golly, Miss Molly, Liberalism hasn’t done enough damage to this country in the last seven years and you want oBAMA to appoint another judge to the Supreme Court that is now leaning heavily to the left after Scalia’s death? Have you looked at how our allies talk about us? Have you listened to how our enemies talk about our military? That’s because the enemy **knows** our military isn’t near as strong as it needs to be. KNOWS IT!!! Are you either in a rush to become Muslim or to have you head cut off? Don’t forget what they like to do to your daughters after they are born. And ladies, forget about having a career because you won’t be leaving the house without a male escort any more.
>
> You might want to keep in mind, when America is stongest, the world is the safest.
>
> Phu Cat
This seems a better statement for a pit or GD thread. Would be fun to watch a thread in one of those forums to answer this.
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### Author:  [@Bridget\_Burke](https://boards.straightdope.com/u/Bridget_Burke)
#### Post date: [February 14, 2016, 6:37am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/16 "2016-02-14T06:37:25Z")
> [@Jim\_s\_Son](#):
>
> Keep in mind, while the Constitution provides for a Supreme Court, it doesn’t specifically say there should be nine members. That is done by legislation. It’s especially convenient now since the Court is fairly evenly divided. Could the Republicans be blamed if they don’t approve of who Obama nominates? sure. But I remember two of Nixon’s nominees for a seat, Haynsworth and Carswell, being rejected by a Democratic controlled Senate. I don’t remember anyone from the left saying the Senate was obstructing or refusing to let it function. It was “Senate’s constitutional right to advise and consent”.
Research time!
[G Harrold Carswell](https://en.wikipedia.org/wiki/G._Harrold_Carswell)’s nomination was rejected but the vote was not on straight party lines. His segregationist & white supremacist background was cited–but that had been long ago. Complaints were not purely ideological:
> [@](#):
>
> In defense against charges that Carswell was “mediocre”, U.S. Senator Roman Hruska, a Nebraska Republican, stated:
>
> > [@](#):
> >
> > “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.”
>
> Hruska’s remark was criticized by many and may have damaged Carswell’s cause.
[Clement Haynesworth](https://en.wikipedia.org/wiki/Clement_Haynsworth) of South Carolina was also rejected bipartisanally:
> [@](#):
>
> Haynsworth was opposed by a coalition of Democrats (possibly in retaliation for the Republicans’ rejection of Fortas as Chief Justice), Rockefeller Republicans, and the NAACP. He was alleged to have made court decisions favoring segregation and of being reflexively anti-labor.
President Obama has a Constitutional right & duty to nominate a justice. I can just imagine Ted Cruz leading the opposition to any Obama nominee–as part of the Presidential campaign he’s conducted since his arrival at the Senate. (Alas, Rockefeller Republicans are an extinct breed.)
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### Author:  [@Jim\_s\_Son](https://boards.straightdope.com/u/Jim_s_Son)
#### Post date: [February 14, 2016, 7:37am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/17 "2016-02-14T07:37:35Z")
> [@Bridget\_Burke](#):
>
> Research time!
>
> [G Harrold Carswell](https://en.wikipedia.org/wiki/G._Harrold_Carswell)’s nomination was rejected but the vote was not on straight party lines. His segregationist & white supremacist background was cited–but that had been long ago. Complaints were not purely ideological:
>
> [Clement Haynesworth](https://en.wikipedia.org/wiki/Clement_Haynsworth) of South Carolina was also rejected bipartisanally:
>
> President Obama has a Constitutional right & duty to nominate a justice. I can just imagine Ted Cruz leading the opposition to any Obama nominee–as part of the Presidential campaign he’s conducted since his arrival at the Senate. (Alas, Rockefeller Republicans are an extinct breed.)
The book on the 1970s Supreme Court “The Brethren” says that Supreme Court members felt that Haynsworth was qualified and made the excusable, in their eyes, mistake of voting on a case where he didn’t realize he owned stock in a company. They didn’t think highly of Carswell though. A number of Democratic senators at the time such as William Fulbright and Sam Ervin had voted against civil rights legislation and Robert Byrd at one time was a Ku Klux Klan member. Roman Hruska did make a statement about mediocre people needing a representative but later claimed he was joshing in response to a reporter asking if Carswell was mediocre. Which if that is what Hruska meant (and not some damage control spin) shows the danger of joking in a way that your words can mean something else on the printed page.
Of course people who love to talk about diversity and how dissent is the highest form
of patriotism usually have a hissy fit if someone actually has a different opinion from themselves.
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### Author:  [@Claverhouse](https://boards.straightdope.com/u/Claverhouse)
#### Post date: [February 14, 2016, 8:05am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/18 "2016-02-14T08:05:31Z")
> [@Phu\_Cat](#):
>
> Good golly, Miss Molly, Liberalism hasn’t done enough damage to this country in the last seven years and you want oBAMA to appoint another judge to the Supreme Court that is now leaning heavily to the left after Scalia’s death? Have you looked at how our allies talk about us? Have you listened to how our enemies talk about our military? That’s because the enemy **knows** our military isn’t near as strong as it needs to be. KNOWS IT!!! Are you either in a rush to become Muslim or to have you head cut off? Don’t forget what they like to do to your daughters after they are born. And ladies, forget about having a career because you won’t be leaving the house without a male escort any more.
>
> You might want to keep in mind, when America is stongest, the world is the safest.
>
> Phu Cat
Victory goes to the Stongest.
---
### Author:  [@Iggy](https://boards.straightdope.com/u/Iggy)
#### Post date: [February 14, 2016, 8:41am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/19 "2016-02-14T08:41:35Z")
> [@coremelt](#):
>
> Sure but he has options. He can call the senate back into session every single recess until they vote on a candidate. And he can make huge political capital by pointing out that the Supreme court needs nine members to function and the GOP is refusing to let it function.
Article II, Section 3 of the Constitution does give the President authority to
> [@](#):
>
> on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper
Not sure the President can call them into session if they are already in session and have not adjourned _sine die_.
And in any event, the President cannot force the Senate to vote on a nominee. It is the prerogative of each chamber to set its own business.
No president since Truman has called either the House or Senate into special session.
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### Author:  [@Schnitte](https://boards.straightdope.com/u/Schnitte)
#### Post date: [February 14, 2016, 10:02am UTC](https://boards.straightdope.com/t/what-options-are-available-for-president-obama-w-r-t-nominating-a-replacement-for-scalia/746069/20 "2016-02-14T10:02:44Z")
> [@Jim\_s\_Son](#):
>
> Keep in mind, while the Constitution provides for a Supreme Court, it doesn’t specifically say there should be nine members. That is done by legislation. It’s especially convenient now since the Court is fairly evenly divided. Could the Republicans be blamed if they don’t approve of who Obama nominates? sure. But I remember two of Nixon’s nominees for a seat, Haynsworth and Carswell, being rejected by a Democratic controlled Senate. I don’t remember anyone from the left saying the Senate was obstructing or refusing to let it function. It was “Senate’s constitutional right to advise and consent”.
That’s a general principle of politics. If you do it, it’s either an exercise of a constitutional right and duty, or a particularly smart manoeuvre, or both. If the other side does it, it’s disgusting power play. Works from all angles.
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