# 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:** 26
**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, 11:44pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/501 "2016-02-19T23:44:10Z")
You know there’s something else about this whole mess that cracks me up. I’m sure someone has brought it previously, because how could it not have been, but these Republicans are so sure that their guy is going to be elected in November but that is far from even money. In fact, I’d put the odds slightly in favor of the Democrats winning the White House again. If so, what’s the GOP plan? Forestall hearing for the next four to eight years? Who, who is not delusional, thinks the Pubs will say come November, “well, I guess that’s settled. We look forward to confirming whomever President Clinton nominates,” as they’ve hinted with the whole, “it should be up to the next president,” bullshit. The Republicans in the senate, and their apologists, are being gigantic babies. But what else is new? ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [February 20, 2016, 12:23am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/502 "2016-02-20T00:23:01Z")
I’m amused by the suggestion that Obama nominate Diane Humetawa to the top bench. She was appointed a US attorney by Bush in 2007, and was nominated as District Court Judge in 2013 by Obama with the support of both Arizona Senators (McCain and Flake), passing the Senate 96-0. Humetawa has a long record as a victims-rights activist, she’s got at least one major case under her belt (the prosecution of Congressman Rick Renzi for corruption) and she’s an expert in Native American law (being a member of the Hopi Tribe herself). Tough on crime, with a record of being supported by Republicans, but a minority woman and the first Native American federal judge (and apparently popular with the HuffPo crowd). She might be a little young but on the other hand I can’t see McCain or Flake (or indeed the other members of the Senate) arguing that she’s incompetent or partisan given she was fully vetted by most of them not all that long ago for the job one rung down. ---
**Author:** ![slash2k](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@slash2k](https://boards.straightdope.com/u/slash2k)\ **Post date:** [February 20, 2016, 1:03am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/503 "2016-02-20T01:03:51Z")
> [@Iggy](#): > > 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: > > Sounds like nominees have been ignored by the Senate before. However, the last one was before the Civil War. William Micou was nominated by President Millard Fillmore only a month before Fillmore’s term ended, and the Senate let the clock run out. Previously, Fillmore had nominated Edward Bradford to fill the same position, sometime in late summer 1852 (I don’t know the exact date, but he was to fill the seat of John McKinley, who died July 19). That session of Congress ended Aug. 31 without taking action. John M. Read’s 1845 nomination is listed in Wikipedia as “no action,” but other sources say it was withdrawn. John Crittenden was nominated in 1828 by John Q. Adams to replace Robert Trimble (who died in late August); his nomination was postponed, and then Adams lost the presidential election that November. The only example in the last 150 years of the Senate failing to act on a Supreme Court nomination was in 1881. Stanley Matthew was nominated in January by outgoing President Hayes, the Senate did nothing as the clock ran out, and then the incoming President Garfield renominated him in March and he was confirmed. ---
**Author:** ![Lightnin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lightnin/32/180_2.png) [@Lightnin](https://boards.straightdope.com/u/Lightnin)\ **Post date:** [February 20, 2016, 1:55am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/504 "2016-02-20T01:55:10Z")
You know, were I a Republican voter, I’d be increasingly concerned at how much of the GOP’s strategy has been to do \*nothing \*while in office. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [February 20, 2016, 2:32am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/505 "2016-02-20T02:32:08Z")
> [@Iggy](#): > > 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: > > Sounds like nominees have been ignored by the Senate before. Yeah, but not since 1881. Should the Senate also go back to having spitoons and debating Reconstruction?:rolleyes: ---
**Author:** ![Tatterdemalion](https://avatars.discourse-cdn.com/v4/letter/t/43a26b/32.png) [@Tatterdemalion](https://boards.straightdope.com/u/Tatterdemalion)\ **Post date:** [February 20, 2016, 2:38am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/506 "2016-02-20T02:38:02Z")
> [@kunilou](#): > > Yeah, but not since 1881. Should the Senate also go back to having spitoons and debating Reconstruction?:rolleyes: That would be nice. I think reconstruction ended way too soon. By about 150 years. ---
**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 20, 2016, 4:18am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/507 "2016-02-20T04:18:36Z")
> [@doorhinge](#): > > As President, Obama doesn’t have the legal authority to prevent a presidential election from taking place. \*I dunno, holding elections seems to fall under the executive branch. What if Obama and his team just get really busy and don’t bother enforcing the rules surrounding the presidential election? What if Fox starts screaming, “The Election Is Scheduled For The 2nd Tuesday In November!!!1!1!!!”, but the White House says, “No, we are going to decline to enforce those regulations. There are too damn many regulations anyway.” People get whipped up into the usual frenzy before the “election”, but come election day there are no polling places open, no early or absentee ballots were sent, nobody shows up to count the votes nobody can cast anyway. They just didn’t bother! Obama gets on TV and announces: “Suckers! I told y’all there was no presidential election until one of my nominees is seated on the Court. Reject as many as you like, I have a whole lot of really good judges to put forward. But unless you want me to be POTUS for life, you will seat one of my nominees.” You gotta admit, that would amount to precisely the same tactics the GOP is using. But I get the feeling you are not okay with it. Maybe it is because voters don’t have enough faith in Grassley and McConnell to get results, and the fact that those guys don’t have the skillset to make a deal to cause the election to be held? And you know it? > [@](#): > > 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. Stop being ridiculous. I am not proposing that Obama commit any crime. I am only suggesting that he doesn’t have to bother actually enforcing rules he doesn’t like. It isn’t like this kind of behavior is without precedent- just look at the behavior of the GOP Congress during Obama’s tenure! > [@](#): > > The Executive Branch has its rules and the Legislative Branch has their rules. Ok, so we agree on this much. Fair and balanced. > [@](#): > > The President nominates Supreme Court Justices. Historically, the U.S. Senate has not consented to confirm every Presidential nominee. As contrary as our viewpoints seem to be, I agree with this, too. Congress has voted down some nominees, and not bothered to consider a few as well. In cases when Congress has not bothered to consider a nominee, it appears (from the posts above) that in all those cases the nomination occurred very close to some kind of deadline- this session is over in less than a month! This president’s term ends in just a few weeks! In cases like that, running the clock out is indistinguishable from Congress’ usual molasses-languid state of hardly ever seeming to do anything anyway. In this case, there are plenty of Congressional sessions ahead- they don’t even have one minute of recess before the (November!) election. It’s like they’re ants, they simply never.stop.working. And Obama’s term doesn’t end this month, it is more like a year away. Any arguments about the timing of This vacancy are demonstrably specious. Bring them up again and I will demolish your specious argument 🙂 But getting back to our point of agreement. Yup, the Senate may refuse to consent to a nominee. But they have sworn an oath to uphold the Constitution. And that says Congress “shall”… provide advice and consent to the president’s nominee. Advice- the Judiciary Committee holds a hearing. This is Iowa senator Chuck Grassley’s turf. As chair of the Judiciary Committee, he receives the president’s nomination and arranges for a hearing. At the hearing, they build a case for or against the nominee- both cases, really. Consent- The nomination is brought to a Senate vote, alongside the Judiciary Committee’s findings. If the nominee gets 51 votes (or, recently, 60), he/she is seated on the Court. 49 or less and Congress has withheld consent on this nominee, thanks, try again. That is the procedure. Congress can’t just decide (except under rare timing conditions that don’t apply here) not to hold a hearing and vote on nominees. To fail to hold a hearing and a vote is in violation of the Constitution, and you pubbies can never talk about that document again if you take this route. Also, GOTO \*. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 20, 2016, 4:52am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/508 "2016-02-20T04:52:01Z")
> [@Tatterdemalion](#): > > That would be nice. I think reconstruction ended way too soon. By about 150 years. And so did spittoons! 🙂 ---
**Author:** ![Tatterdemalion](https://avatars.discourse-cdn.com/v4/letter/t/43a26b/32.png) [@Tatterdemalion](https://boards.straightdope.com/u/Tatterdemalion)\ **Post date:** [February 20, 2016, 5:13am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/509 "2016-02-20T05:13:30Z")
> [@BrainGlutton](#): > > And so did spittoons! 🙂 They’ve gotta be better than those gross plastic cups. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [February 20, 2016, 11:24am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/510 "2016-02-20T11:24:28Z")
> [@Try2B\_Comprehensive](#): > > \*I dunno, holding elections seems to fall under the executive branch. What if Obama and his team just get really busy and don’t bother enforcing the rules surrounding the presidential election? What if Fox starts screaming, “The Election Is Scheduled For The 2nd Tuesday In November!!!1!1!!!”, but the White House says, “No, we are going to decline to enforce those regulations. There are too damn many regulations anyway.” > > People get whipped up into the usual frenzy before the “election”, but come election day there are no polling places open, no early or absentee ballots were sent, nobody shows up to count the votes nobody can cast anyway. They just didn’t bother! If the Federal government managed the actual mechanics of elections, this would be plausible, I suppose. But they don’t - the states and/or localities do, depending on the state. ---
**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 20, 2016, 12:52pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/511 "2016-02-20T12:52:34Z")
New GOP talking point: Don’t subject a Supreme Court nominee to the [cruelty of our obstructionism.](http://www.huffingtonpost.com/entry/republicans-supreme-court_us_56c62cbfe4b0928f5a6b41c4) > [@](#): > > Now, recalcitrant Republicans are shifting their arguments and trying to convince Democrats that because the hearings are doomed to fail, making someone go through them would be unnecessarily cruel. > > “I think that hearing would end up very politicized. And I don’t think it would be fair to the nominee,” Sen. Ted Cruz (R-Texas) said Wednesday during a CNN town hall event. > > “It would be a denigration of that person’s reputation not by Republicans – I think more by Democrats than Republicans,” added Sen. Orrin Hatch (R-Utah) during an interview with radio host Hugh Hewitt on Wednesday. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [February 20, 2016, 1:27pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/512 "2016-02-20T13:27:47Z")
> [@RTFirefly](#): > > If the Federal government managed the actual mechanics of elections, this would be plausible, I suppose. But they don’t - the states and/or localities do, depending on the state. Beyond that, the President’s term expires at noon on January 20th. Should there be no President-elect Speaker Ryan will place his hand on a bible and become the next President. That’s probably not something Obama wants to happen. ---
**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 20, 2016, 3:49pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/513 "2016-02-20T15:49:52Z")
> [@Fear\_Itself](#): > > New GOP talking point: Don’t subject a Supreme Court nominee to the [cruelty of our obstructionism.](http://www.huffingtonpost.com/entry/republicans-supreme-court_us_56c62cbfe4b0928f5a6b41c4) Jesus, they’ve got balls. How in holy hell is this a logical argument? Basically, what they’re saying is, “We’re gonna fuck you over no matter what, so if you even try, it’s your fault.” Bullies on the playground have better game than that weak shit. ---
**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 20, 2016, 5:34pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/514 "2016-02-20T17:34:58Z")
> [@Jonathan\_Chance](#): > > Beyond that, the President’s term expires at noon on January 20th. Should there be no President-elect Speaker Ryan will place his hand on a bible and become the next President. That’s probably not something Obama wants to happen. Well, if it _could_ work, it would amount to the same tactics the GOP is using. That’s the point. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [February 20, 2016, 5:46pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/515 "2016-02-20T17:46:47Z")
> [@Jonathan\_Chance](#): > > Beyond that, the President’s term expires at noon on January 20th. Should there be no President-elect Speaker Ryan will place his hand on a bible and become the next President. That’s probably not something Obama wants to happen. Why him and not Biden? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 20, 2016, 5:55pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/516 "2016-02-20T17:55:07Z")
> [@Try2B\_Comprehensive](#): > > \*I dunno, holding elections seems to fall under the executive branch… Where on earth do you get that idea from? That is to say, your entire argument rests on a faulty assumption, and so is invalid. ---
**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 20, 2016, 6:08pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/517 "2016-02-20T18:08:53Z")
I saw JEB!!! on CNN and he said that we ought to just calm down here and not “politicize” this: So we should wait til after the election. Even if he wasn’t Ws brother, and Governor of FLA it would be the richest thing I ever heard. It’s like there wasn’t any voter who got burned over the last 20 years who might also want to have the constitution respected. You have to be ashamed to be a Republican now. How does one take the cognitive dissonance? The cons and the rebuplicans are going to be in different Venn diagrams pretty soon. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 20, 2016, 6:48pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/518 "2016-02-20T18:48:02Z")
> [@iiandyiiii](#): > > Why him and not Biden? His term expires the same instant that Obama’s does. ---
**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 21, 2016, 2:09am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/519 "2016-02-21T02:09:27Z")
> [@Try2B\_Comprehensive](#): > > … > > But getting back to our point of agreement. Yup, the Senate may refuse to consent to a nominee. But they have sworn an oath to uphold the Constitution. And that says Congress “shall”… provide advice and consent to the president’s nominee. … > That is the procedure. Congress can’t just decide (except under rare timing conditions that don’t apply here) not to hold a hearing and vote on nominees. To fail to hold a hearing and a vote is in violation of the Constitution, and you pubbies can never talk about that document again if you take this route. Also, GOTO \*. The Constitution does not say that the Senate shall provide Advice and Consent. Spin it anyway you like, but that just is not the case. As Wikipedia notes: Article II, Section 2, paragraph 2 of the United States Constitution states: > [@](#): > > [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and **he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint** Ambassadors, other public Ministers and Consuls, **Judges of the supreme Court** , and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: _but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments._ The President shall nominate. President is subject. Shall nominate is verb, relating to action of the President. Therefore the President has a Constitutional duty to nominate. Arguably in some limited circumstances it would not be practical for a President to make a nomination\*, but that does not seem to be the case at present. But the Constitution simply does not state the Senate shall provide advice and consent. It states that nominations are with the advice and consent of the Senate. Subtle difference. No affirmative duty created. Was it just an accident of wording? No. There was consideration given to differing methods of appointing the judiciary. Benjamin Franklin proposed letting lawyers collectively appoint the judiciary. Some at the Constitutional Convention proposed the legislature should make such appointments without involving the Executive. Though initially preferring appointment by the Senate alone, [James Madison eventually proposed](http://www.weeklystandard.com/the-constitution-does-not-require-the-senate-to-vote-on-a-nomination/article/2001087) that appointment by the Executive should be by default and that the Senate should be required to vote only to veto a nominee. The Framers rejected these ideas, opting instead for a system similar to that proposed by Nathaniel Gorham which was modeled on the system used in Massachusetts requiring nomination by the Executive and affirmative action by the Senate to confirm a nominee. And history reflects that the Privy Council in Massachusetts had a history of simply declining to vote on those nominations the did not deem worthy of consideration. Over the years 36 nominees to the Supreme Court have not been confirmed. The Senate did not hold a vote on 25 of those. The Harvard Journal of Law & Public Policy published an article, Toward the Framers Understanding of “Advice and Consent”: A Historical and Textual Inquiry ([pdf link](http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No1_White.pdf)) by Adam White on this subject in the Fall of 2005. It is worth a read. \*Suppose a SCOTUS justice drops dead at 11:55am on January 20, 2017. Arguably it would not be practical for the President to vet a nominee and submit a nomination to the Senate in the five minutes he has remaining as President. ---
**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 21, 2016, 2:22am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/520 "2016-02-21T02:22:17Z")
> [@Iggy](#): > > The Constitution does not say that the Senate shall provide Advice and Consent. Spin it anyway you like, but that just is not the case. > > As Wikipedia notes: > Article II, Section 2, paragraph 2 of the United States Constitution states: > > The President shall nominate. President is subject. Shall nominate is verb, relating to action of the President. Therefore the President has a Constitutional duty to nominate. Arguably in some limited circumstances it would not be practical for a President to make a nomination\*, but that does not seem to be the case at present. > > But the Constitution simply does not state the Senate shall provide advice and consent. It states that nominations are with the advice and consent of the Senate. Subtle difference. No affirmative duty created. Was it just an accident of wording? No. > > There was consideration given to differing methods of appointing the judiciary. Benjamin Franklin proposed letting lawyers collectively appoint the judiciary. Some at the Constitutional Convention proposed the legislature should make such appointments without involving the Executive. Though initially preferring appointment by the Senate alone, [James Madison eventually proposed](http://www.weeklystandard.com/the-constitution-does-not-require-the-senate-to-vote-on-a-nomination/article/2001087) that appointment by the Executive should be by default and that the Senate should be required to vote only to veto a nominee. The Framers rejected these ideas, opting instead for a system similar to that proposed by Nathaniel Gorham which was modeled on the system used in Massachusetts requiring nomination by the Executive and affirmative action by the Senate to confirm a nominee. > > And history reflects that the Privy Council in Massachusetts had a history of simply declining to vote on those nominations the did not deem worthy of consideration. > > Over the years 36 nominees to the Supreme Court have not been confirmed. The Senate did not hold a vote on 25 of those. > > The Harvard Journal of Law & Public Policy published an article, Toward the Framers Understanding of “Advice and Consent”: A Historical and Textual Inquiry ([pdf link](http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No1_White.pdf)) by Adam White on this subject in the Fall of 2005. It is worth a read. > > \*Suppose a SCOTUS justice drops dead at 11:55am on January 20, 2017. Arguably it would not be practical for the President to vet a nominee and submit a nomination to the Senate in the five minutes he has remaining as President. “and by and with the Advice and Consent of the Senate, shall appoint” There is a “shall” that applies to them that doesn’t relate to nomination. It’s to appoint with the president. If they don’t assent to participate in appointment that is not constitutional. [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=25) [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=27)