# 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:** 24
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 19, 2016, 12:36am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/461 "2016-02-19T00:36:26Z")
> [@BrainGlutton](#): > > [Way ahead of you.](http://boards.straightdope.com/sdmb/showthread.php?t=264462) You da man. ---
**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 19, 2016, 12:44am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/462 "2016-02-19T00:44:33Z")
> [@duality72](#): > > Maybe something like, “Given that total inaction on a Supreme Court nominee is an unconstitutional infringement on the operations of both the judicial and executive branches of government, if no action is taken within thirty days of a nomination, it shall be considered that the Senate has no meaningful advice to give and its consent has been implied by its lack of opposition. Therefore, the nominee shall immediately join the Court without further delay.” I am under the impression that if a bill is sent to the President foer signing, he has 10 days to either sign or veto or it automatically becomes law. What is the basis for that rule? ---
**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 19, 2016, 12:50am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/463 "2016-02-19T00:50:06Z")
> [@CarnalK](#): > > I am under the impression that if a bill is sent to the President foer signing, he has 10 days to either sign or veto or it automatically becomes law. What is the basis for that rule? Article 1, Section 7 of the U.S. Constitution states: > [@](#): > > If any Bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a Law, in like manner as if he had signed it, **unless the Congress by their Adjournment prevent its return, in which case it shall not be a Law.** So if Congress adjourns before the 10 day period expires, the President may take no action and [the bill does not become a law.](https://en.wikipedia.org/wiki/Pocket_veto#United_States) ---
**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 19, 2016, 2:41am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/464 "2016-02-19T02:41:07Z")
> [@CarnalK](#): > > And as per your wiki link a political question is one in which “no Constitutional duties is involved”. But it is in the Constitution. The President _shall_ nominate a Supreme Court judge _with_ the advice and consent of _the Senate_. > > Eta: I don’t know what the remedy would be. Something vague like “Give advice and consent in a timely fashion”. Referring back to the Wiki on [political question](https://en.wikipedia.org/wiki/Political_question) as a legal concept, look down to the [Leading Authority](https://en.wikipedia.org/wiki/Political_question#Leading_authority) section. One of the six possible factors that define a political question is The "impossibility for a court’s independent resolution without expressing a lack of respect for a coordinate branch of the government; To rule on such an issue the Court would have to tell the Senate what to do. But the Constitution says only the Senate can set its own rules. The Court cannot tell them what to do. And because the Court cannot provide a decision that provides meaningful relief, the matter is nonjusticiable. If the Constitution said “The Senate \*\*\*shall \*\*\*give its Advice and Consent” then that might be another matter. But that is not what the Constitution says. ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [February 19, 2016, 3:11am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/465 "2016-02-19T03:11:58Z")
> [@Iggy](#): > > Referring back to the Wiki on [political question](https://en.wikipedia.org/wiki/Political_question) as a legal concept, look down to the [Leading Authority](https://en.wikipedia.org/wiki/Political_question#Leading_authority) section. One of the six possible factors that define a political question is The "impossibility for a court’s independent resolution without expressing a lack of respect for a coordinate branch of the government; > > To rule on such an issue the Court would have to tell the Senate what to do. But the Constitution says only the Senate can set its own rules. The Court cannot tell them what to do. And because the Court cannot provide a decision that provides meaningful relief, the matter is nonjusticiable. > > If the Constitution said “The Senate \*\*\*shall \*\*\*give its Advice and Consent” then that might be another matter. But that is not what the Constitution says. If it logically follows from the wording that they need not advise or consent, then it also logically follows that they need not approve a nominee, and need not be consulted. This case could be made if they are attempting to a priori censor an appointment, in contravention of law. ---
**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 19, 2016, 3:15am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/466 "2016-02-19T03:15:55Z")
Their advice and consent is packaged “with” the Presidential “shall”. It’s all of one piece. Otherwise it loses all sense and loses the necessity of a court existing. What you are saying is that it’s perfectly Constitutional for the Senate to never again even contemplate adding a judge. ---
**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 19, 2016, 5:02am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/467 "2016-02-19T05:02:21Z")
Right, I also think the “shall” is distributive. What if Obama responded with these exact same tactics? What if he rigged the system such that the presidential election could not proceed until one of his nominees were placed on the Court? Would everyone treat that as an acceptable use/dereliction of executive authority? ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [February 19, 2016, 6:54am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/468 "2016-02-19T06:54:07Z")
> [@Saint\_Cad](#): > > BUT what if Obama asks for the Senate’s advice on who to appoints (not that he ever would)? Would they be required to provide it? No. ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [February 19, 2016, 6:56am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/469 "2016-02-19T06:56:30Z")
> [@CarnalK](#): > > As I mentioned up top (post 402), it seems to me that if the Republicans refuse to allow the Senate to advise and confirm/vote they are actively blocking a procedure set out in the Constitution. If they refuse to bring his nomination before the Senate could Obama bring it to ummm the Supreme Court for a ruling? Not approving is one thing, not doing anything is another. It is a textbook example of a “political question”, which the Court won’t touch with a ten foot pole. ---
**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 19, 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/746067/470 "2016-02-19T14:25:04Z")
It’s a political question. Arguably the most obvious that would ever have come before the court. For the record, I think the doctrine is stupid but it’s what we’ve had for a long time. ---
**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 19, 2016, 2:40pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/471 "2016-02-19T14:40:47Z")
Maybe. The court has told Congress “what to do” in the past. They ruled that they can’t exclude members for example in Powell v McCormack. So I don’t think it’s inconceivable for them to rule that the Constitution says the President shall nominate and the Senate shall give advice and consent, which historically has meant sending it to committee. But hey IANAL. ---
**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 19, 2016, 2:50pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/472 "2016-02-19T14:50:57Z")
That’s not what they ruled in McCormack. They ruled that the House couldn’t make new qualifications for its members. ---
**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 19, 2016, 2:54pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/473 "2016-02-19T14:54:14Z")
Right, sorry that’s what I meant - they can’t make up new rules to exclude. ---
**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 19, 2016, 2:55pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/474 "2016-02-19T14:55:27Z")
I think we’re at the point where we need an amendment. “The president shall nominate the justices of the Supreme Court, ambassadors, other federal courts, etc. These nominations will become effective unless rejected by a vote of the full Senate within thirty days of nomination.” ---
**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 19, 2016, 2:59pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/475 "2016-02-19T14:59:04Z")
That would probably be closer to what the framers intended, since they would not have foreseen the filibuster. 30 days is probably a bit too short a window, though. ---
**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 19, 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/746067/476 "2016-02-19T15:01:05Z")
> [@Really\_Not\_All\_That\_Bright](#): > > That would probably be closer to what the framers intended, since they would not have foreseen the filibuster. 30 days is probably a bit too short a window, though. You’re probably right. Maybe 90 days, whatever. I think the framers had no idea that one party would refuse to exercise its responsibility to govern. ---
**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 19, 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/746067/477 "2016-02-19T15:01:43Z")
Definitely too short as many successful appointments have taken longer than that. ---
**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 19, 2016, 3:10pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/478 "2016-02-19T15:10:16Z")
> [@CarnalK](#): > > Definitely too short as many successful appointments have taken longer than that. I think that’s because they weren’t on the clock. Give someone a deadline and they tend to prioritize their schedule. ---
**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 19, 2016, 3:19pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/479 "2016-02-19T15:19:06Z")
> [@BobLibDem](#): > > I think we’re at the point where we need an amendment. “The president shall nominate the justices of the Supreme Court, ambassadors, other federal courts, etc. These nominations will become effective unless rejected by a vote of the full Senate within thirty days of nomination.” Incidentally this is basically what they State of Tennessee did by amending their state Constitution to [make confirmation by default](http://www.tba.org/info/amendment-2-to-the-tennessee-constitution) occur after 60 days if the legislature is in session at time of appointment, or up to 60 days after the next legislative session starts if made while the legislature is out of session.\*. The matter was [put to the voters](https://ballotpedia.org/Tennessee_Judicial_Selection,_Amendment_2_%282014%29#Election_results) in 2014. It was approved by 61% of the voters. - Perhaps Tennessee does not have recess appointments? A federal amendment wouldn’t need to address the second case. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 19, 2016, 4:43pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/480 "2016-02-19T16:43:25Z")
I’d be fine with forcing an up or down vote on nominees. That could be structured to require more than a simple majority, or not. But there is nothing in the current rules that requires congress to do so right now. [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=23) [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=25)