# 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:** 25
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [February 19, 2016, 5:14pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/481 "2016-02-19T17:14:58Z")
If we’re going to fantasize about amending the Constitution, why not just abolish the Senate? ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [February 19, 2016, 5:49pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/482 "2016-02-19T17:49:31Z")
> [@MOIDALIZE](#): > > If we’re going to fantasize about amending the Constitution, why not just abolish the Senate? I like that one. Article V, which sets the rules for Constitutional amendments, bans amending the Constitution to give different states more or fewer Senators than others, but it doesn’t say the Constitution can’t be amended to get rid of the Senate entirely. Of course, if we tried to move such an amendment from fantasy to reality, it would be a much heavier lift than an amendment mandating confirmation by default after a decent interval of time. Yeah, I know, ANY Constitutional amendment is a heavy lift, but I can see confirmation by default actually getting through 38 state legislatures, given that both parties expect to occupy the White House at some point. But practically every pol wants the Senate to continue to exist, as an advancement opportunity if nothing else. If you’re a state legislator who wants to run for Congress, you want your Congresscritter to run for Senate, so you can more easily run for his/her House seat. ---
**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, 6:17pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/483 "2016-02-19T18:17:14Z")
> [@RTFirefly](#): > > … > Of course, if we tried to move such an amendment from fantasy to reality, it would be a much heavier lift than an amendment mandating confirmation by default after a decent interval of time. > > Yeah, I know, ANY Constitutional amendment is a heavy lift, but I can see confirmation by default actually getting through 38 state legislatures, … With some states itching for a Constitutional Convention, sane heads might as well have one or two proposals ready that are not totally off the deep end. Since the Constitution does not specify any qualifications whatsoever for the Supreme Court, perhaps some very basic things could be added: citizenship and age requirements, as an example. And throw in confirmation by default for something to really chew on and argue about. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [February 19, 2016, 6:37pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/484 "2016-02-19T18:37:22Z")
> [@Iggy](#): > > With some states itching for a Constitutional Convention, sane heads might as well have one or two proposals ready that are not totally off the deep end. > > Since the Constitution does not specify any qualifications whatsoever for the Supreme Court, perhaps some very basic things could be added: citizenship and age requirements, as an example. And throw in confirmation by default for something to really chew on and argue about. The only saving grace of a Constitutional convention would be that it only bypasses Congress; any amendment approved by the Convention would still have to run the gauntlet of 38 state legislatures. But I’d still be very afraid if such a convention was called. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 19, 2016, 7:07pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/485 "2016-02-19T19:07:40Z")
> [@Try2B\_Comprehensive](#): > > …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? As President, Obama doesn’t have the legal authority to prevent a presidential election from taking place. What if Obama decided to blackmail a majority of the election leadership in a majority of the states? Obama would be impeached. What if Obama held the Electoral College hostage? Obama would be impeached, if he wasn’t shot by the FBI Hostage Rescue Team. The Executive Branch has its rules and the Legislative Branch has their rules. The President nominates Supreme Court Justices. Historically, the U.S. Senate has not consented to confirm every Presidential nominee. ---
**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, 7:24pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/486 "2016-02-19T19:24:03Z")
> [@doorhinge](#): > > Historically, the U.S. Senate has not consented to confirm every Presidential nominee. You agree that historically, every nominee has actually been discussed in the Senate though, right? They’ve never refused to allow a nominee to even be debated over in committee. Correct? ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 19, 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/746067/487 "2016-02-19T19:38:05Z")
> [@BrainGlutton](#): > > It was the Republicans. Before Scalia’s corpse was cold, and I mean actually on the same day he died, Cruz and McConnell announced they would block any Obama nominee. But who contacted McConnell? Who told McConnell that Scalia had passed away? Somebody had to tell him. Was it a Scalia family member? A staff member at the resort? The Secret Service? The media outlets? A Whitehouse staff member? A Ouija board? Did a NPR/DNC/MSNBC “reporter” call to tell McConnell, "_Now we’ve got you, you sanctimonious ol" twit. Scalia just DIED and Obama is gonna nominate an anti-2nd, pro-socialist, anti-gun ownership, pro-UN, anti-free speech, pro-South African Constitution, and anti-conservative lawyer. And there’s nothing you can do about it. Bwahahaha._ ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 19, 2016, 7:51pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/488 "2016-02-19T19:51:31Z")
> [@CarnalK](#): > > You agree that historically, every nominee has actually been discussed in the Senate though, right? They’ve never refused to allow a nominee to even be debated over in committee. Correct? I can’t guarantee it but I believe that to be true. What is the penalty if the U.S. Senate refuses to officially consider a President’s nominee? A sternly written letter from the President? ---
**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, 7:53pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/489 "2016-02-19T19:53:48Z")
Why ask me? I am not saying they should be arrested just that the Republicans are saying they want to refuse a Constitutional duty. You agree? ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 19, 2016, 8:10pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/490 "2016-02-19T20:10:24Z")
> [@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. Uhh, beyond the vague phrase _“with the advice and consent of the Senate”_, I don’t think there is actually a procedure set out. People sometimes accuse me of being a prescriptivist, but in this case, I really don’t think the meaning of the word “procedure” has evolved to the point where it can mean something that doesn’t have any specific steps. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [February 19, 2016, 8:14pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/491 "2016-02-19T20:14:24Z")
> [@CarnalK](#): > > Why ask me? I am not saying they should be arrested just that the Republicans are saying they want to refuse a Constitutional duty. You agree? Maybe President Obama should just try to _seat_ a new justice. This would have the effect of forcing the Republicans’ hand and obligating them to say out loud that they have a Constitutional _ **DUTY** _ of advice and consent. Because their behavior at this point makes it appear that they actually view it as nothing more than a Constitutional PRIVILEGE. Fuckers. ---
**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, 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/746067/492 "2016-02-19T20:23:18Z")
> [@kaylasdad99](#): > > Uhh, beyond the vague phrase _“with the advice and consent of the Senate”_, I don’t think there is actually a procedure set out. People sometimes accuse me of being a prescriptivist, but in this case, I really don’t think the meaning of the word “procedure” has evolved to the point where it can mean something that doesn’t have any specific steps. Well maybe “procedure” is too strong a word for the Constituional wording, but there is 200 years of procedure history that came out of that vague phrase. In fact, I just learned that the Judiciary Committee turns 200 this year, formed in 1816. Happy frigging birthday! Lol ---
**Author:** ![Jack\_Batty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jack_batty/32/3201_2.png) [@Jack\_Batty](https://boards.straightdope.com/u/Jack_Batty)\ **Post date:** [February 19, 2016, 8:31pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/493 "2016-02-19T20:31:34Z")
So. As I understand the rationale, the senate is well within their authority to forestall any hearings on any nominee sight unseen, and the rest of us should just shut the fuck up about it, because whatever motivations and political hackery involved don’t matter anyway, so stop being a fucking pussy about it and just accept it. In that case, I don’t want to hear a goddamned peep about any of Obama’s executive actions. He is well within his authority to make any executive action he pleases and the GOP can just shut the fuck up about it, because whatever motivations and political hackery involved don’t matter anyway, so stop being a fucking pussy about it and just accept it. That’s the way this works, no? ---
**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, 8:48pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/494 "2016-02-19T20:48:37Z")
> [@CarnalK](#): > > You agree that historically, every nominee has actually been discussed in the Senate though, right? They’ve never refused to allow a nominee to even be debated over in committee. Correct? For SCOTUS, I think this is true. But the same process is used for other federal judges and plenty of those have been blocked from having a vote. ---
**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, 8:52pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/495 "2016-02-19T20:52:35Z")
True, but the Supreme Court is the one mentioned in the Constitution. All other courts are legislatively created entities. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 19, 2016, 9:15pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/496 "2016-02-19T21:15:04Z")
> [@CarnalK](#): > > Why ask me? I am not saying they should be arrested just that the Republicans are saying they want to refuse a Constitutional duty. You agree? No. You haven’t proven that the U.S. Senate hasn’t met their Constitutional duty by not holding a floor vote. If Obama ever gets around to nominating someone, or finding someone who wants to be nominated, I believe that the Senate’s discussion not to have a confirmation vote concerning the nominees qualifications or suitability should fulfill their duty. It’s should be obvious to most that the U.S. Senate has NOT consented to every SCOTUS nominee placed before them. We the Voters can penalize our Senators for rubberstamping an Obama nominee just as We the Voters can penalize our Senators for rejecting an Obama nominee. (p.s. There are other penalties besides arrest.) ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 19, 2016, 9:19pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/497 "2016-02-19T21:19:29Z")
> [@Jack\_Batty](#): > > So. As I understand the rationale, the senate is well within their authority to forestall any hearings on any nominee sight unseen, and the rest of us should just shut the fuck up about it, because whatever motivations and political hackery involved don’t matter anyway, so stop being a fucking pussy about it and just accept it. > > In that case, I don’t want to hear a goddamned peep about any of Obama’s executive actions. He is well within his authority to make any executive action he pleases and the GOP can just shut the fuck up about it, because whatever motivations and political hackery involved don’t matter anyway, so stop being a fucking pussy about it and just accept it. > > That’s the way this works, no? No. You can bitch about it all you wish. You may even find someone who’s willing to listen to you. Your best bet of influencing the rules of the U.S. Senate is to become a U.S. Senator. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 19, 2016, 9:25pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/498 "2016-02-19T21:25:52Z")
> [@kaylasdad99](#): > > Maybe President Obama should just try to _seat_ a new justice. This would have the effect of forcing the Republicans’ hand and obligating them to say out loud that they have a Constitutional _ **DUTY** _ of advice and consent. > > Because their behavior at this point makes it appear that they actually view it as nothing more than a Constitutional PRIVILEGE. > > Fuckers. Obama can declare that **kaylasdad99** is now, and forever more, a Supreme Court Justice. Congratulations. Unfortunately, the U.S. Constitution requires Supreme Court Justices to be approved by the U.S. Senate. Your rulings would have no legal authority. And the other justices might not show you the secret handshake. ---
**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, 11:31pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/499 "2016-02-19T23:31:15Z")
> [@CarnalK](#): > > You agree that historically, every nominee has actually been discussed in the Senate though, right? They’ve never refused to allow a nominee to even be debated over in committee. Correct? Not correct. If only because some nominations have been withdrawn (by the [nominee](https://en.wikipedia.org/wiki/Douglas_H._Ginsburg)or by the president) before the Senate could act. And that started early… with George Washington’s presidency\*. The Senate indefinitely postponed Andrew Jackson’s initial nomination of [Roger Taney](https://en.wikipedia.org/wiki/Roger_B._Taney). Taney was later renominated and confimed. He went on to write the majority opinion in the _Dred Scott_ case. Don’t we wish the Senate just continued to hold out!? Andrew Johnson nominated [Henry Stanberry](https://en.wikipedia.org/wiki/Henry_Stanbery) to the high court. Congress responded by passing a law reducing the size of the court by two. Does that count as discussing it, since the law went through the Senate? - The nomination of [William Patterson](https://en.wikipedia.org/wiki/William_Paterson_%28judge%29) was withdrawn [due to a technical error](http://www.dailykos.com/story/2016/02/18/1487300/-Supreme-Court-nominees-who-were-rejected-Lessons-from-history) and resubmitted the next day. ---
**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, 11:39pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/500 "2016-02-19T23:39:43Z")
Another resource… Wikipedia’s page on [Unsuccessful nominations to the Supreme Court of the United States](https://en.wikipedia.org/wiki/Unsuccessful_nominations_to_the_Supreme_Court_of_the_United_States) It states: > [@](#): > > 5 [nominees] had no action taken on them. > > One of these was because of a change in the Presidency, but the nomination was resubmitted by the incoming President and confirmed. Sounds like nominees have been ignored by the Senate before. [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=24) [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=26)