# 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:** 14
**Author:** ![kenobi\_65](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kenobi_65/32/13178_2.png) [@kenobi\_65](https://boards.straightdope.com/u/kenobi_65)\ **Post date:** [February 16, 2016, 7:26pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/261 "2016-02-16T19:26:44Z")
> [@doorhinge](#): > > I’m saying that the U.S. Senate does not have to rubberstamp everything the President wants. Them’s the rules. > > The Senate can say NO. No means no, unless you have the power of Executive Order. In which case, any future President can overturn the Executive Order. And just to be clear, EO does not apply to SCOTUS nominations. I don’t think that a single Democratic-leaning poster in this thread is looking for a rubberstamp. And I don’t think any serious Democratic politician would be, either. Do you understand that there’s a difference between a “no” vote on a nominee, and a refusal by the Senate to even consider a nominee, even put that nominee to a vote? Because the latter is what the Senate leadership is talking about. ---
**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, 7:28pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/262 "2016-02-16T19:28:50Z")
> [@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? > [@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. The lower court ruling would stand. I don’t believe that the SCOTUS (in the last 100 years anyway) has ever heard a case that didn’t originate in another court. Maybe one of the SDMB legal eagles can confirm? ---
**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, 7:29pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/263 "2016-02-16T19:29:11Z")
> [@Evil\_Captor](#): > > Because it’s IMPOSSIBLE that the Republicans could or would run out the clock on a more moderate nominee, right? As I said, it is easier to make political hay out of Republicans stonewalling a moderate centrist than it is to score the same political points by rejecting an extremist. If the Democrats presume for a moment that the Republicans will refuse to even hold hearings on a nominee then who should Obama nominate to gain the most political advantage for his party? Any choice will not have much bearing on the votes of the true believers, either Democrats or Republicans. I think the greatest advantage the Democrats can gain is by nominating someone who is viewed as more like a moderate than like a Saul Alinsky protege. If a nominee is viewed as too radical by that segment of the population that is subject to persuasion then those voters may view the Republicans as saving the country by rejecting the nominee. If a nominee is viewed as of moderate judicial temperament then the swing voters may be more responsive to taking out frustrations on the Republicans for their intransigence. The risk to the Democrats is that the Republicans vote to confirm a nominee who is still to the left of Scalia. ---
**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, 7:30pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/264 "2016-02-16T19:30:01Z")
> [@kenobi\_65](#): > > I don’t think that a single Democratic-leaning poster in this thread is looking for a rubberstamp. And I don’t think any serious Democratic politician would be, either. > > Do you understand that there’s a difference between a “no” vote on a nominee, and a refusal by the Senate to even consider a nominee, even put that nominee to a vote? Because the latter is what the Senate leadership is talking about. In both cases, the end result is that the nominee doesn’t get seated on the SCOTUS. ---
**Author:** ![kenobi\_65](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kenobi_65/32/13178_2.png) [@kenobi\_65](https://boards.straightdope.com/u/kenobi_65)\ **Post date:** [February 16, 2016, 7:36pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/265 "2016-02-16T19:36:13Z")
> [@doorhinge](#): > > In both cases, the end result is that the nominee doesn’t get seated on the SCOTUS. Yes, but if the Senate votes “no” on a candidate, they’ve fulfilled their duty. And then the president can nominate a different candidate (and, yes, possibly, there would be negotiation, attempting to find a middle ground). This does not seem to be what the Republican Senate leadership wants. They want a Republican president to nominate a candidate, because they’ve had the misfortune of having a arch-conservative Justice die during a Democratic presidency. If it means stonewalling for 11+ months to get what they want (and not delivering on their own duty in order to do this), they seem to be willing to do this. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [February 16, 2016, 7:36pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/266 "2016-02-16T19:36:51Z")
> [@doorhinge](#): > > The lower court ruling would stand. I don’t believe that the SCOTUS (in the last 100 years anyway) has ever heard a case that didn’t originate in another court. Maybe one of the SDMB legal eagles can confirm? Actually, one or two each year[. Cite](https://www.law.cornell.edu/wex/original_jurisdiction) > [@](#): > > The original jurisdiction of the Court is laid out by statute in 28 U.S.C. § 1251. Section 1251(a) provides that with one type of dispute (disputes between states), the Court’s jurisdiction is not only “original,” it is exclusive. In other words, if the parties cannot settle the matter, no other court but the Supreme Court has authority, under the Constitution, to take jurisdiction. > > Rule 17 of the Supreme Court Rules governs actions based on the Court’s original jurisdiction. > > Relatively few original jurisdiction cases come to the Court. In recent times there have been one or two a year. The Court’s practice in these cases is to appoint a “Master” to hear the evidence, determine facts, and recommend a decision. This allows the Court to deal with the dispute very much like it does with those that come to it on appeal, for it puts the Court in the posture of reviewing the Master’s findings and recommendations in the light of legal arguments made by the opposing parties. > > Typically, the disputes between states coming to the Court involve conflicting property claims. Two recent examples include Louisiana v. Mississippi (decided in October 1995) and Nebraska v. Wyoming (decided in May 1995). ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 16, 2016, 7:38pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/267 "2016-02-16T19:38:24Z")
I don’t get what Evil Captor thinks will be gained by the grand gesture of nominating Noam Chomsky. Motivate the base? But would it motivate them to come out and vote Hillary/Dem? Just a satisfying middle finger to the Republicans? I don’t get it. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [February 16, 2016, 8:05pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/268 "2016-02-16T20:05:59Z")
Grassley is now saying that he’s going to wait to see who the nominee is: > [@](#): > > “I would wait until the nominee is made before I would make any decisions,” Mr. Grassley said, according to Radio Iowa. “This is a very serious position to fill and it should be filled and debated during the campaign and filled by either Hillary Clinton, Senator Sanders or whoever’s nominated by the Republicans. [NY times link](http://www.nytimes.com/2016/02/17/us/politics/senator-charles-grassley-hearings-supreme-court-nominee.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news&_r=0) I think this is more of an acknowledgement that the Republican’s strategy is/was dumb than an indication of more cooperation. ---
**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, 8:09pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/269 "2016-02-16T20:09:08Z")
> [@Ravenman](#): > > 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**? Seriously? There is no rule that says the U.S. Senate has to rubberstamp any President’s nominee. Since you appear to have grown tired of discussing possible Congressional actions over Obama’s soon-to-be-announced SCOTUS nominee, I’ll just say that since IRS Deputy Director of Acquisitions Gregory Roseman, and Director of the IRS Exempt Organizations division Lois Lerner both invoked the Fifth Amendment against self incrimination, I believe you’re wrong when you say, “There’s apparently no law prohibiting the IRS from giving conservative political action committees extra attention on their tax status”. ---
**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, 8:11pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/270 "2016-02-16T20:11:17Z")
> [@Procrustus](#): > > Actually, one or two each year[. Cite](https://www.law.cornell.edu/wex/original_jurisdiction) Thanks for the info. That makes sense since neither state would accept the ruling of the other state. ---
**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, 8:11pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/271 "2016-02-16T20:11:29Z")
> [@doorhinge](#): > > It’s Obama who wants to see his nomination make it to the SCOTUS, Obama is going to have to get involved. If Obama wants a deal, Obama is going to have to make the deal. Democrats are acting like Obama can’t make the deal. Personally, I don’t believe Obama has the skillset to make the deal work. Listen, even a combination of Casanova, Don Jaun, and James Bond, wouldn’t have been able to get Mother Theresa to put out on the first date. This says nothing about their skillset as seducers. McConnel has come out and said that there is no nominee that Obama can nominate that he will consider, and no deal to be made. Why can’t you take him at his word. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [February 16, 2016, 8:11pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/272 "2016-02-16T20:11:46Z")
> [@doorhinge](#): > > Seriously? There is no rule that says the U.S. Senate has to rubberstamp any President’s nominee. > . Oh, well why didn’t you just say this before? That solves everything ---
**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, 8:15pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/273 "2016-02-16T20:15:46Z")
> [@Ravenman](#): > > 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? Which means Obama is unable to shepherd his nominee thru the Senate. Perhaps a different President would have had the skillset to make a deal? ---
**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, 8:16pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/274 "2016-02-16T20:16:18Z")
> [@CarnalK](#): > > I don’t get what Evil Captor thinks will be gained by the grand gesture of nominating Noam Chomsky. Motivate the base? But would it motivate them to come out and vote Hillary/Dem? Just a satisfying middle finger to the Republicans? I don’t get it. Might motivate the base. And might piss off the swing voters. The party faithful aren’t going to change their minds. The undecided voters might, being more likely to cast votes against whichever party is perceived to be making more of a mess of it. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [February 16, 2016, 8:16pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/275 "2016-02-16T20:16:31Z")
> [@treis](#): > > Grassley is now saying that he’s going to wait to see who the nominee is: > > [NY times link](http://www.nytimes.com/2016/02/17/us/politics/senator-charles-grassley-hearings-supreme-court-nominee.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news&_r=0) > > I think this is more of an acknowledgement that the Republican’s strategy is/was dumb than an indication of more cooperation. What the heck? He’s going to wait to see who the nominee is but the next President is who should fill the position. How is that differentiating himself from McConnell’s position? ---
**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, 8:19pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/276 "2016-02-16T20:19:04Z")
CNN on why some, if not all, prospective SCOTUS nominees might be reluctant to take the gig: [http://www.cnn.com/2016/02/16/politics/supreme-court-nomination-possibilities/index.html](http://www.cnn.com/2016/02/16/politics/supreme-court-nomination-possibilities/index.html) ---
**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, 8:19pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/277 "2016-02-16T20:19:21Z")
> [@Ravenman](#): > > Since you are returning to this argument, please answer my previous question to you:No rule against the IRS running Republican PACs through a meat grinder on basis of their beliefs. So that’s okay, right? The IRS can put Republican PACs through the same meat grinder as the Democratic PACs. Treating them differently on the basis of expressed political views is a violation of First Amendment Freedom to Assemble and Freedom of Speech rights. ---
**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, 8:23pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/278 "2016-02-16T20:23:25Z")
> [@kenobi\_65](#): > > …Obama could be the greatest political negotiator of the past hundred years, and still would have extreme difficulty making headway in this sort of Senate. Obama might be the greatest political negotiator of the past seven years if you ignore his inability to work with the duly elected representatives in Congress. Good government is based on the ability of elected leaders to reach a compromise with the opposing party. ---
**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, 8:32pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/279 "2016-02-16T20:32:10Z")
> [@Iggy](#): > > Treating them differently on the basis of expressed political views is a violation of First Amendment Freedom to Assemble and Freedom of Speech rights. But the FBI investigated and said no laws were broken. So it’s okay, right? ---
**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, 8:34pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/280 "2016-02-16T20:34:32Z")
> [@RTFirefly](#): > > One thing I’ve heard in some places is that Obama might have a hard time getting anyone to agree to be his nominee, because of the sort of hell the GOP will put him through. (post shortened) The media outlets will be all over the nominee’s law school records, high school records, middle school records, and grade school records. Any traffic tickets, divorces, children, grand children? Involved in any criminal or civil cases, hopefully as a judge and not as the defendant? Bought a home, or two, or three? Questionable loans? Questionable donations? Questionable friends? Yeah, that sounds like fun. :eek: [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=13) [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=15)