# 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:** 12
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [February 16, 2016, 4:01pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/221 "2016-02-16T16:01:00Z")
Assuming this ploy works. Obama can’t get any nominee past the senate; either they vote along party lines to block, or they don’t allow a vote in the first place. Now, fast forward, and a Republican wins the White House. Should Democrats block any nominee on ideological grounds that their president was the one who was Constitutionally supposed to be making the decision? Would we now live in a world with an ever decreasingly sized Supreme Court because no one can get any nominee past the Senate without a filibuster proof majority (and even then, requiring absolute party adherence)? Is there any non electoral remedy to this situation? ---
**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, 4:02pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/222 "2016-02-16T16:02:00Z")
> [@Iggy](#): > > 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. But it seems to me that it would be an issue if a candidate takes it to court claiming that the state certified the wrong electors and that Congress should not accept the result. Or suppose we have an apparent tie, Trump wins the House vote, and Clinton claims that we should not accept the electors in a given state for various reasons. We have the potential, albeit slim, for a huge constitutional crisis. ---
**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, 4:04pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/223 "2016-02-16T16:04:09Z")
> [@adaher](#): > > 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. To be sure, almost any “found” ballots will have had a chain of custody failure along the way, almost by definition. If not, they would not have been “lost” in the first place. And as such shouldn’t be simply counted since they may have been tampered with, or even be fake _ab initio_. But the number of them should probably be counted and added to the error bars of the result. I agree a better method is to rigorously define a margin of error and if the count is within the margin of error declare a tie & re-vote. And yes, run-offs in multi-way elections are another way to amplify the differences between the top two so counting fuzz doesn’t flip the result wrongly. That idea (close count =\> tie =\> do-over) introduces the new, though much less likely to happen, problem. What to do when the count comes out \*riiight \*alongside the tie threshold? \*Maaybe \*a recount would move it solidly from just-barely-a-tie territory into A-barely-wins territory. Or vice versa. Or the same on the B side. The bigger you make the tie band the less likely the almost-/barely-a-tie issue comes up. But the more likely you get a statistical dead heat. e.g. imagine the Prez was elected by total national popular vote and the tie margin was set at 8%. i.e. anything less lopsided than 54/46 was a no-decision and a do-over. (After skipping spoiled and minor-candidate votes of course). We’d have a lot more no-decisions in our history and in the modern era we might never be able to get a President selected at all. Lends a whole new meaning to the permanent campaign, doesn’t it? :eek: ---
**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, 4:05pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/224 "2016-02-16T16:05:55Z")
> [@Saint\_Cad](#): > > 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. Sure, but they can only do that by amending the Judiciary Act, so Obama would veto. ---
**Author:** ![AHunter3](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ahunter3/32/368_2.png) [@AHunter3](https://boards.straightdope.com/u/AHunter3)\ **Post date:** [February 16, 2016, 4:08pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/225 "2016-02-16T16:08:59Z")
Based on the behavior pattern of the Republicans in Congress as of late, they’ll get into serious fights with themselves after the 2nd or 3rd nominee is obstructed, especially if Obama serves up a moderate and the polls are showing the Republican Prez nominee looking a lot like a hellbound snowball; the same folks who didn’t want to shut the government down won’t want to have the party continue to look obstructionist especially when they’ll just end up with a more liberal nominee under the new Democratic Prez, but the fire-eater zealous types will have enough members in line to keep anything from moving forward, and they’ll end up appearing to be in disarray; Obama will help make the Democrats look like reasonable folks who were willing to compromise a little; then President Clinton will nominate someone who won’t be nearly as liberal as lots of folks were salivating for, the Republicans will still balk but it will eventually go through and the bench will be a more liberal SC bench than it has been. ---
**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, 4:15pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/226 "2016-02-16T16:15:29Z")
> [@Ravenman](#): > > 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. I don’t agree that statements by the Speaker of the House bear more (or even equivalent) weight than statements by a sitting member of the Senate Judiciary committee when it comes to judicial appointments. Schumer was a party leader, but more importantly, was in the majority on the Senate Judiciary Committee when he made his remarks. He had the means to carry out his promises. The Speaker of the House only has his bully pulpit when it comes to judicial confirmations. I think both sides \*should \*grow up and realize they are not going to get their ideal candidate. The Republicans have to accept that Obama will never nominate a Scalia clone. The Democrats have to accept that even a right-down-the-middle, politically agnostic judge (does such exist?!?) would be a substantial improvement over Scalia. This Senate isn’t going to approve a hard left jurist to replace Scalia. The Republicans instead seem to be choosing to delay, hoping for a Republican in the White House. But Scalia died in mid-February. Obama is President now and a nominee can be vetted and voted on in the normal course of business. If it was the morning of January 20, 2017 that Scalia didn’t wake up then the whole matter would be different. Anyway, I rather like the idea of more than one so-called swing justice on the high court. ---
**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, 4:27pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/227 "2016-02-16T16:27:31Z")
> [@BobLibDem](#): > > But it seems to me that it would be an issue if a candidate takes it to court claiming that the state certified the wrong electors and that Congress should not accept the result. Or suppose we have an apparent tie, Trump wins the House vote, and Clinton claims that we should not accept the electors in a given state for various reasons. We have the potential, albeit slim, for a huge constitutional crisis. It is a matter for a state court. Any appeal to the Supreme Court that ends in a tie vote upholds the lower court decision without setting precedent. This is not a constitutional crisis. It would result in an outcome that would outrage many on the losing side, but so did Bush v Gore and our Constitution survived intact. ---
**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, 4:32pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/228 "2016-02-16T16:32:22Z")
> [@Iggy](#): > > Schumer was a party leader, but more importantly, was in the majority on the Senate Judiciary Committee when he made his remarks. He had the means to carry out his promises. A non-chairman member of the Judiciary Committee has no means to carry out such a threat, other than voting no on a nomination. Why do you think being a member of the Judiciary Committee gives him “the means to carry out his promises?” > [@](#): > > The Speaker of the House only has his bully pulpit when it comes to judicial confirmations. I’m not speaking of only judicial appointments. I’m saying that we should listen more to people who are in charge of things as opposed to people who sit on the sidelines to cheer or throw bombs. To use another, more extreme and hopefully clearer example, when Obama talks about immigration policy we should listen. When Congressman Steve “They have calves the size of cantaloupes” King says things about immigration policy, we can usually ignore him, even if King does sit on the House Judiciary Committee that has jurisdiction over such matters. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [February 16, 2016, 5:23pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/229 "2016-02-16T17:23:44Z")
If Democrats take control of the Senate in November, could Obama perhaps get a nominee through between the swearing-in of the new Congress and him leaving office on Jan. 20? ---
**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, 5:28pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/230 "2016-02-16T17:28:44Z")
> [@Elendil\_s\_Heir](#): > > If Democrats take control of the Senate in November, could Obama perhaps get a nominee through between the swearing-in of the new Congress and him leaving office on Jan. 20? If Obama nominates someone on January 3 (or thereabouts) when the new Congress is seated, sure the Senate could vote on it before January 20. But even if Dems take control of the Senate, they’d still have to deal with a Republican filibuster. ---
**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, 5:28pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/231 "2016-02-16T17:28:45Z")
> [@Elendil\_s\_Heir](#): > > If Democrats take control of the Senate in November, could Obama perhaps get a nominee through between the swearing-in of the new Congress and him leaving office on Jan. 20? I presume the filibuster would be used to block it, though Democrats could change the rules if in majority. ---
**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, 5:32pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/232 "2016-02-16T17:32:18Z")
Actually, just thought of something. Let’s say a Democratic Senate is sworn in on January 3, 2017 (or whatever that date is). They immediately adjourn. Obama recess appoints the biggest lefty you can imagine. That lefty justice could sit on the Supreme Court until roughly December 2018. Yeah, this ain’t gonna happen. ---
**Author:** ![Buck\_Godot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/buck_godot/32/6573_2.png) [@Buck\_Godot](https://boards.straightdope.com/u/Buck_Godot)\ **Post date:** [February 16, 2016, 5:42pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/233 "2016-02-16T17:42:21Z")
> [@Dinsdale](#): > > Would be fun to see how they might oppose Sri, after he was unanimously confirmed 4 yrs ago! 😃 The fact that Sri Srinivasan was confirmed 97-0 means nothing. I doubt that they will even bother to hold hearings. McConnell proposed rationale for not voting on a candidate has nothing to do with any particular individual candidate but only with the timing. This argument holds as much water no matter who the candidate is, going so far as to consider any candidate (even one who might be to their liking) as a possibility would invalidate this argument. > [@marshmallow](#): > > People keep talking about the Republicans being punished for obstructionism, but that never happened. They were electorally rewarded for their efforts. Why would their fortunes reverse this time? I agree. Hopefully I’m just being overly cynical but I also doubt they will suffer politically. Those on the left will disgree with this action but they wouldn’t vote for them in any case. Those on the right will applaud the action as resistance against unconsitutional court packing of a illegitimate president with one foot out the door who is once again trying to trample democracy. As for those in the middle, partisanship has become to entrenced that it now just to be expected as part of politics as usual. The average voter doesn’t have enough of a grasp of history or civics to realize that this represents a new low, and will instead just see this as another example where the two parties disagree, with no more consequence than say the disagreement about the proper tax rate. This view will be reenforced by the “liberal” media which equates presenting false equivalences with being non-partisan. So the voters will be left with the impression that both sides are being equally unreasonable. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [February 16, 2016, 5:45pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/234 "2016-02-16T17:45:29Z")
I think they’ll try, either by rejecting a few before confirming or holding one guy’s confirmation up for a long time. But eventually they’ll cave, they have to, it would be sooo bad for them ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [February 16, 2016, 5:45pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/235 "2016-02-16T17:45:50Z")
> [@Iggy](#): > > 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. Because it’s IMPOSSIBLE that the Republicans could or would run out the clock on a more moderate nominee, right? ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [February 16, 2016, 5:54pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/236 "2016-02-16T17:54:47Z")
> [@BobLibDem](#): > > I presume the filibuster would be used to block it, though Democrats could change the rules if in majority. They’ve used the nuclear option before, and could easily do so again, given the stakes. > **[Nuclear option](https://en.wikipedia.org/wiki/Nuclear_option#Use_of_nuclear_option_during_Obama_presidency)** > > In the United States Senate, the nuclear option is a parliamentary procedure that allows the Senate to override a standing rule by a simple majority, avoiding the three-fifths supermajority normally required to invoke cloture on a measure amending the Standing Rules. The term "nuclear option" is an analogy to nuclear weapons being the most extreme option in warfare. > The nuclear option can be invoked by a senator raising a point of order that contravenes a standing rule. The presiding officer ... ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 16, 2016, 6:16pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/237 "2016-02-16T18:16:55Z")
> [@Ravenman](#): > > I think things are being set up so that if a Republican President takes office on January 20, Senate Democrats can just decide there should be no vote on his nomination. > > After all, the new President will be in a honeymoon period where sober judgment isn’t possible. > > And after that, we just don’t know if the new President will just be a one-termer. Why be rash when the will of the American people isn’t yet clear? > > And if the GOP President does get re-elected in 2020, then he’s a lame duck. And under the Republican precedent, we should shouldn’t have lame ducks making big nominations. A lame duck, politically-speaking, is an elected official near the end of their term. You seem to forget that Hillary, Bernie, and Bill will want to make a decision on who to nominate for the SCOTUS. My guess is that the leading Democrats, and their financial backers, are currently creating a long list of potential nominees. That should be whittled down to a short list, and finally a single name will emerge. I can understand that the Republicans and Tea Party don’t believe that Obama can force his nominee thru the U.S. Senate. I can understand that independents might believe that Obama can’t force his nominee thru the Senate. What I find most interesting is the lack of faith by Democrats that Obama can force his nominee thru the Senate. Democrats don’t even know who Obama is going to nominate but they’re pretty sure Obama can’t get the job done. The only thing Democrats can agree on is that it’s never Obama’s fault. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [February 16, 2016, 6:18pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/238 "2016-02-16T18:18:07Z")
> [@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? It wouldn’t go directly to the Supreme Court. There are a few areas where the Supreme Court has ‘original jurisdiction,’ that is, it hears a case without a lower court hearing it first - but this wouldn’t be one of them. In a case like this, either the case would have originated in a state court or a U.S. District Court. In the latter case, while the option is available to request a direct review by the Supreme Court, bypassing the Circuit Court level, it almost surely wouldn’t be done in such a case, because a 4-4 tie at the Supreme Court would leave intact the ruling of the lower court. And it would be pretty disastrous if the lower court was a District Court rather than a Circuit Court of Appeals. (Or a state supreme court, in the first option.) ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [February 16, 2016, 6:25pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/239 "2016-02-16T18:25:53Z")
> [@Ravenman](#): > > Actually, just thought of something. Let’s say a Democratic Senate is sworn in on January 3, 2017 (or whatever that date is). They immediately adjourn. Obama recess appoints the biggest lefty you can imagine. That lefty justice could sit on the Supreme Court until roughly December 2018. > > Yeah, this ain’t gonna happen. Let’s make it even more interesting: Trump wins the election by a whisker, but the new Senate is divided 50-50\*. For the 17 days between the morning of January 3 and noon on January 20, the Dems control the White House and the Senate, but at noon on January 20, they lose both. On January 3, 2017, the Dems try to hold a vote confirming Sri Srinivasan, who Obama nominated in March 2016, but the GOP filibusters the nomination. The Dems take the Senate into recess, and Obama withdraws Srinivasan’s nomination, and recess appoints Anita Hill, who is on the court through the end of 2018. 😃 \*This part has happened before, in 2000. ---
**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, 6:29pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/240 "2016-02-16T18:29:33Z")
> [@doorhinge](#): > > Democrats don’t even know who Obama is going to nominate but they’re pretty sure Obama can’t get the job done. I think we Demcrats simply realize that Senate Republicans are the world’s leading experts at getting nothing done. Why should anyone have reason to doubt their competence at incompetence? [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=11) [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=13)