# Will Congress forestall every attempt by Obama to appoint a new justice for the rest of his term? **URL:** \ **Category:** Politics & Elections\ **Created:** [February 13, 2016, 11:38pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067 "2016-02-13T23:38:47Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 16, 2016, 2:14pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/201 "2016-02-16T14:14:29Z")
I’d also note that discussing the legalities is kinda irrelevant to this issue because pretty much everything is legal here. The Senate can refuse to confirm anyone. The Congress can even permanently decrease or increase the size of the court. They could just refuse to confirm anyone, then Jeb Bush wins and they increase the size of the court to 15. Of course, a lot of this stuff is really, really wrong, but it’s all legal. Sometimes the biggest outrages are legal. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 16, 2016, 2:16pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/202 "2016-02-16T14:16:58Z")
> [@BobLibDem](#): > > But it all goes to show how critical it is to have an odd number of justices so that if something that absolutely needed a decision came up that it would actually get decided. Barring death of another justice, we are working without a safety net. Actually, even an odd number won’t protect you if one has to recuse for whatever reason. There are often cases where you get only eight justices due to recusal. So I don’t think Maddow’s argument is very compelling. To me, this basically just boils down to propriety. Why can’t we all just get along? The Republicans need to start behaving like they want to work with the Democrats. That of course does not guarantee a confirmation(Reagan had to wait for his third choice after Bork and Ginsburg weren’t confirmed), but it does mean that every nominee gets a fair hearing and an up or down vote. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [February 16, 2016, 2:22pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/203 "2016-02-16T14:22:05Z")
> [@adaher](#): > > But yes, that is a rather scary, if unlikely, outcome. ALthough it could be solved by simply not allowing recounts. Would that be a state law, or a federal law? And would that law itself be subject to judicial review, with appeals to the Supreme Court? Or is it turtles all the way down? ---
**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 16, 2016, 2:25pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/204 "2016-02-16T14:25:51Z")
> [@DSeid](#): > > You see that is exactly the point: they have announced that it does not matter WHO he puts forth. ANY HORSE HE ENTERS is, sight unseen, qualifications and politics unknown, declared DOA. > > Now maybe if they had waited until they saw what horse was entered they could spin it … … But this is pretty much what [Chuck Schumer (D-NY)](http://www.washingtonexaminer.com/schumer-in-2007-dont-confirm-any-bush-supreme-court-nominee/article/2583283) said in July 2007, 19 months prior to the end of GWB’s term. > [@Charles Schumer](#): > > We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances. Of course a vacancy is not an “extraordinary circumstance” on its own. Otherwise the statement would be meaningless. Look, the voters voted for Obama in 2012. He has a duty to make a nomination. And then the voters voted for a Republican majority in the Senate in 2014. The Senate has a role to provide “advice and consent.” The Democrats must accept that the advice might be “no” with a denial of consent. It would be a bit foolish for Obama to play into the Republican’s game too far by nominating a too-far left leaning judge in the Choamsky mold. That merely allows the Republicans to hold hearings and drag things out before voting no (if they vote at all) citing views out of the judicial mainstream. Lets the Republicans run out the clock, which is what they hope to do anyway. Better to nominate a more mainstream candidate and then dare the Senate not to vote. That is the way to make hay out of Republican obstructionism. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [February 16, 2016, 2:26pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/205 "2016-02-16T14:26:53Z")
> [@adaher](#): > > The Republicans need to start behaving like they want to work with the Democrats. The last 7 words in this sentence are redundant. Republicans need to grow up. They lost the presidency. Deal with it. Maybe they rationalize that Obama is only entitled to 3/5 of a term. You can bet that such obstruction would not have occurred if it had been Ginsberg, it’s their precious right wing majority that they can’t bear to lose. Tough. Try winning the presidency and see if that works better. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 16, 2016, 2:29pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/206 "2016-02-16T14:29:23Z")
> [@Fear\_Itself](#): > > Would that be a state law, or a federal law? And would that law itself be subject to judicial review, with appeals to the Supreme Court? Or is it turtles all the way down? State of course. Nate Silver would be a powerful advocate for that. They cost money, leave one side feeling cheated, and don’t actually settle anything. He’s written about margins of error in elections before, although I don’t know that he’s specifically addressed the uselessness of recounts. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [February 16, 2016, 2:35pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/207 "2016-02-16T14:35:17Z")
> [@CarnalK](#): > > And after these elegant heartfelt pleas, the Democrats forever pledged to never stall a nomination again. I think you’ll find that what has happened since 2005 and 2016 is that Barack Hussein Obama was overwhelming elected by the American people. Twice. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [February 16, 2016, 2:36pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/208 "2016-02-16T14:36:08Z")
I don’t recall and haven’t done any recent research. I understand all about margins of error in counting large numbers of anything. My question is if recounts have uncovered large failures, like a roomful of ballot boxes that got overlooked the first time. Or evidence comes out that all the absentee ballots for a couple weeks have disappeared and can’t be found? Or a conscious decision not to count some batch of ballots “since they can’t possibly matter”, yet it turns out upon recount that they do? IOW, are recounts always and only simply re-masticating the very same pile of ballots, or do they ever uncover larger scale mistakes that might actually have been “mistakes”? Assume we’re talking US Federal or state-level elections. I’m not interested in how somebody fouled up Podunk’s election for dog catcher when he spilled ketchup on a pile of ballots and threw half of them away after mopping up the table with them. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [February 16, 2016, 2:42pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/209 "2016-02-16T14:42:36Z")
> [@adaher](#): > > State of course. What would prevent the aggrieved party from appealing that law to the Supreme Court to force a recount? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 16, 2016, 2:43pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/210 "2016-02-16T14:43:54Z")
> [@LSLGuy](#): > > My question is if recounts have uncovered large failures, like a roomful of ballot boxes that got overlooked the first time. Or evidence comes out that all the absentee ballots for a couple weeks have disappeared and can’t be found? Or a conscious decision not to count some batch of ballots “since they can’t possibly matter”, yet it turns out upon recount that they do? > > IOW, are recounts always and only simply re-masticating the very same pile of ballots, or do they ever uncover larger scale mistakes that might actually have been “mistakes”? > > Assume we’re talking US Federal or state-level elections. I’m not interested in how somebody fouled up Podunk’s election for dog catcher when he spilled ketchup on a pile of ballots and threw half of them away after mopping up the table with them. Good points, and there would have to be a formal process for admitting new ballots. IMO, if someone finds ballots in a car trunk, hell no. Mishandling of ballots is common, and it seems to me that ballots that are mishandled should not be admissible. But then you say, “But that disenfranchises people!” True. So have a re-vote, or runoff, if there were more than two candidates. Actually, I think runoffs should be standard in cases where the top two are within 1% of each other. ---
**Author:** ![Lantern](https://avatars.discourse-cdn.com/v4/letter/l/d26b3c/32.png) [@Lantern](https://boards.straightdope.com/u/Lantern)\ **Post date:** [February 16, 2016, 3:01pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/211 "2016-02-16T15:01:25Z")
> **[How the politics of the next nomination will play out - SCOTUSblog](https://www.scotusblog.com/2016/02/how-the-politics-of-the-next-nomination-will-pay-out/)** > > This post substantially revises and supersedes my earlier one on how the political parties will likely approach the Scalia vacancy, in which I had concluded that Ninth Circuit Judge Paul Watford was the most likely nominee.  On reflection,... Scotusblogs games out the various scenarios. His bottom line: > [@](#): > > So while I will update my research on potential nominees, at this point I think that Attorney General Lynch is the most likely candidate. I think the administration is likely to nominate her, that the Senate will initially refuse to proceed with the nomination but ultimately accede after delaying the process significantly, and then vote her down on party lines. At that point, Republicans will slow-walk a follow-up nominee and claim that it is too close to the election to act on the candidate. I don’t know if the nominee will be Lynch but the Republican strategy he describes sounds plausible. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 16, 2016, 3:03pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/212 "2016-02-16T15:03:55Z")
> [@adaher](#): > > The Republicans need to start behaving like they want to work with the Democrats. That of course does not guarantee a confirmation(Reagan had to wait for his third choice after Bork and Ginsburg weren’t confirmed), but it does mean that every nominee gets a fair hearing and an up or down vote. It was primarily the GOP who doomed Ginsburg’s confirmation, for the record - he admitted he smoked pot, which didn’t go down so well in the era of Just Say No - and he never got a hearing since he withdrew his name from consideration after nine days. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [February 16, 2016, 3:05pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/213 "2016-02-16T15:05:07Z")
I’d be very curious if **doorhinge** and **D’Anconia** are truly committed to their underlying point: that if there isn’t a rule against it, it is okay to do. There’s apparently no law prohibiting the IRS from giving conservative political action committees extra attention on their tax status. Hey, if it isn’t prohibited, there’s nothing to complain about, eh? Let’s see if Mitch McConnell’s Super PACs have ever done anything wrong. You know, just an open-ended investigation, to make sure everything is above board. No complaints, right **doorhinge**? Right **D’Anconia**? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [February 16, 2016, 3:07pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/214 "2016-02-16T15:07:26Z")
> [@Iggy](#): > > But this is pretty much what [Chuck Schumer (D-NY)](http://www.washingtonexaminer.com/schumer-in-2007-dont-confirm-any-bush-supreme-court-nominee/article/2583283) said in July 2007, 19 months prior to the end of GWB’s term. So by pointing this out, are you saying that in your opinion, Schumer, alone and on his own, talking about a hypothetical and the entirety of the elected GOP in both the House & Senate talking about an actual are equivalent? :dubious: :rolleyes: ---
**Author:** ![Try2B\_Comprehensive](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/try2b_comprehensive/32/65_2.png) [@Try2B\_Comprehensive](https://boards.straightdope.com/u/Try2B_Comprehensive)\ **Post date:** [February 16, 2016, 3:15pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/215 "2016-02-16T15:15:17Z")
> [@D\_Anconia](#): > > We could also ask Senator Schumer, who fancies himself the next Senate Majority Leader: > > In July 2007, he advocated that no Supreme Court nominee made by President Bush should be confirmed. That was when there was a year and half remaining in the President’s term, instead of the 11 months we have now. > > [http://www.politico.com/story/2007/07/schumer-to-fight-new-bush-high-court-picks-005146](http://www.politico.com/story/2007/07/schumer-to-fight-new-bush-high-court-picks-005146) > > President Obama can nominate whomever he likes, but no nominees should be confirmed. > > Sauce\>Goose\>Gander Good answer. But in the end, Bush got his nominee. There isn’t a “and you gotta like it” clause. I think “advise and consent” is pretty clear- the Senate is obliged to go along with the process. But hey, if they want to obstruct, that is fine with me. I think it will be terrible for them in the elections if they do, kind of like [this](https://www.youtube.com/watch?v=DzVRLmbr5qk). ---
**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 16, 2016, 3:30pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/216 "2016-02-16T15:30:07Z")
> [@BobLibDem](#): > > Rachel Maddow posed an interesting question last night. If I might paraphrase, it goes roughly like this: > > Suppose Trump and Clinton are the nominees, though it really doesn’t matter who. Now suppose the election is close, which is possible. Let’s further suppose that with one state remaining to be counted, it is evident that the race hinges on how this state goes. Then suppose that the vote in this state is razor-thin, and there is a recount and another recount and that one of these favors Trump and another favors Clinton. Suppose each side has what it thinks is a legal reason to advance that his/her claim is superior and that his/her side should prevail. The case is immediately kicked to the Supreme Court, and the Court splits 4-4. Now what happens? Obama’s term expires, who gets their hand on the Bible on Inauguration Day? Paul Ryan? There is already a mechanism for dealing with this. It is only really an issue if the swing state fails to certify its Electors. If no candidate has a majority in the Electoral College then the election is sent to the newly seated House of Representatives to select a president from among the top three finishers. And the newly reconstituted Senate selects the Vice President from among the top two finishers. ---
**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 16, 2016, 3:31pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/217 "2016-02-16T15:31:15Z")
> [@Try2B\_Comprehensive](#): > > Good answer. But in the end, Bush got his nominee. There isn’t a “and you gotta like it” clause. > … Actually it was moot. No vacancy in the Supreme Court occurred in that time frame. ---
**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 16, 2016, 3:38pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/218 "2016-02-16T15:38:05Z")
> [@Snowboarder\_Bo](#): > > So by pointing this out, are you saying that in your opinion, Schumer, alone and on his own, talking about a hypothetical and the entirety of the elected GOP in both the House & Senate talking about an actual are equivalent? :dubious: :rolleyes: At the time Schumer was chairman of the Democratic Senatorial Campaign Committee and a sitting [member of the Senate Judiciary Committee](http://www.sourcewatch.org/index.php/Senate_Committee_on_the_Judiciary#110th_Congress_.282007-2008.29) which is capable of blocking a nominee from coming up for a floor vote. He still serves on the [Senate Judiciary Committee](https://en.wikipedia.org/wiki/United_States_Senate_Committee_on_the_Judiciary). So yeah, I’d say there is an equivalence. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [February 16, 2016, 3:47pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/219 "2016-02-16T15:47:38Z")
> [@Iggy](#): > > So yeah, I’d say there is an equivalence. First, I’ll state that I think Schumer was wrong then, just like McConnell was wrong now. But I certainly think there is a big difference between what Schumer said and McConnell said in terms of the importance of who is saying it. For example, Paul Ryan saying something carries a hell of a lot more weight than Debbie Wasserman-Schultz saying something. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 16, 2016, 3:50pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/220 "2016-02-16T15:50:45Z")
One option is for Congress to do the same thing they did to Andrew Johnson. When a Supreme Court justice died they reduced the number of SCOTUS seats by one. [Previous page](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067.md?page=10) [Next page](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067.md?page=12)