# 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:** 27
**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 21, 2016, 2:35am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/521 "2016-02-21T02:35:21Z")
> [@drad\_dog](#): > > “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. No. That “shall” applies to the President. > [@](#): > > If they don’t assent to participate in appointment that is not constitutional. Really? What happens to them if hey don’t? ---
**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 21, 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/746067/522 "2016-02-21T02:38:06Z")
> [@John\_Mace](#): > > No. That “shall” applies to the President. Thanks for the ruling, Justice Mace. ---
**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 21, 2016, 2:56am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/523 "2016-02-21T02:56:13Z")
> [@CarnalK](#): > > Thanks for the ruling, Justice Mace. Grammarian Mace, if you please. Tell me there is another way to read that part of the constitution…? ---
**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 21, 2016, 3:10am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/524 "2016-02-21T03:10:12Z")
Boy, reading this thread, I think it is clear that some folks don’t understand the difference between a nomination and an appointment. They are different things. The clause of the Constitution is as clear as day if one pauses to consider the difference between the two. The clause gives the President the duty to propose someone for a particular post (nominate). The clause also gives the President the duty to swear in (appoint) the nomininee IF the Senate consents. There’s quite simply no affirmative duty assigned to the Senate in that clause - it simply establishes a check on the appointment power of the President. Nonetheless, I consider it both silly and outrageous if the Senate doesn’t consider an Obama nomination to such an important post. But it isn’t unconstitutional if it doesn’t happen. ---
**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, 3:16am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/525 "2016-02-21T03:16:30Z")
“by and with the Advice and Consent of the Senate” is an adverbial phrase. If modifies the verbs in the sentence, substantially changing the overall meaning. Note the difference in meaning with and without the phrase. [ol] [li][The President] …shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court[/li] [li][The President] … shall nominate, and \ shall appoint … Judges of the supreme Court[/li] [/ol] The Founders first considered a version #2 and rejected the idea. Thus the adverbial phrase was added. But the drafters of the Constitution did know how to make explicit when action on the part of one branch was required to complete action on the part of another branch\*. They considered the idea to compel Senate action in respect to confirmations but chose not to use such wording in the Advice and Consent clause. \*The House has power to vote to Impeach the President. Article I Section 3 of the Constitution states “the Chief Justice shall preside” over the trial in the Senate. No option. An affirmative duty is placed on the Chief Justice to act. ---
**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 21, 2016, 3:40am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/526 "2016-02-21T03:40:07Z")
> [@Ravenman](#): > > Boy, reading this thread, I think it is clear that some folks don’t understand the difference between a nomination and an appointment. They are different things. > > The clause of the Constitution is as clear as day if one pauses to consider the difference between the two. The clause gives the President the duty to propose someone for a particular post (nominate). The clause also gives the President the duty to swear in (appoint) the nomininee IF the Senate consents. > > There’s quite simply no affirmative duty assigned to the Senate in that clause - it simply establishes a check on the appointment power of the President. > > Nonetheless, I consider it both silly and outrageous if the Senate doesn’t consider an Obama nomination to such an important post. But it isn’t unconstitutional if it doesn’t happen. Yep. It’s nonsense to claim that the Constitution compels the Senate to act. But the Senate should act in good faith to consider nominees and act in good faith to confirm. Still, it’s up to us, The People, to hold them to those acts of good faith. ---
**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 21, 2016, 3:44am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/527 "2016-02-21T03:44:21Z")
I’m not convinced, but I like your posts,\*\* Iggy\*\*. But let’s say I spot you “shall”. There is still that troubling word, “with.” “by and with the Advice and Consent of the Senate.” What this Senate is proposing amounts to “without” the Advice and Consent of the Senate. Totally contrary to the intent of the Constitution. They have nothing but the speciousest of reasons for withholding Advice and Consent until after the confirmation. Their main reason seems to be animus toward Obama. But the subject in the section of the Constitution in question is “the President”, without modifiers. Obama is indistinct from Reagan on this point. See what I mean? ---
**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 21, 2016, 5:09am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/528 "2016-02-21T05:09:12Z")
> [@Try2B\_Comprehensive](#): > > I’m not convinced, but I like your posts,\*\* Iggy\*\*. > > But let’s say I spot you “shall”. There is still that troubling word, “with.” “by and with the Advice and Consent of the Senate.” > > What this Senate is proposing amounts to “without” the Advice and Consent of the Senate. Totally contrary to the intent of the Constitution. They have nothing but the speciousest of reasons for withholding Advice and Consent until after the confirmation. Their main reason seems to be animus toward Obama. But the subject in the section of the Constitution in question is “the President”, without modifiers. Obama is indistinct from Reagan on this point. See what I mean? The advice of the Senate is to wait for the next president. You and I might not like that advice, but it is advice nonetheless. But let’s say you’re right. What does the constitution say is the recourse for inaction by the Senate? ---
**Author:** ![handsomeharry](https://avatars.discourse-cdn.com/v4/letter/h/e9c0ed/32.png) [@handsomeharry](https://boards.straightdope.com/u/handsomeharry)\ **Post date:** [February 21, 2016, 10:29am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/529 "2016-02-21T10:29:17Z")
> [@Frank](#): > > And when President Clinton or President Sanders gathers together all those nominations, signs his or her name right under Obama’s, and sends them all back to the Senate, Republicans will say, “Look, the next election is only three years and 364 days away. We think the people should have a say in this.” > > The people had a say in this. In 2012, the people elected Obama to be President. If they wanted nominees that the Republicans like, they had every chance to elect Romney. They didn’t. The people also had a say, when they elected the Congress. The “people” seem to be a diverse lot, don’t they?? ---
**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 21, 2016, 1:52pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/530 "2016-02-21T13:52:31Z")
> [@John\_Mace](#): > > The advice of the Senate is to wait for the next president. You and I might not like that advice, but it is advice nonetheless. > > But let’s say you’re right. What does the constitution say is the recourse for inaction by the Senate? Well we agree that the “shall” obviously requires the President to act. Let’s say Clarence Thomas kicks it tomorrow and suddenly we have a “liberal” odd numbered court. If Obama and then Hillary just decide not to put anyone in until a liberal dies, what’s the recourse? ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [February 21, 2016, 2:05pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/531 "2016-02-21T14:05:34Z")
> [@handsomeharry](#): > > The people also had a say, when they elected the Congress. Sure, and if the Senate doesn’t like the candidate Obama nominates, they are free to vote against him or her. Face it, Obama is President, and he gets to make the nomination. The Senate gets to vote for or against. ---
**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 21, 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/746067/532 "2016-02-21T14:50:00Z")
> [@Frank](#): > > The Senate gets to vote for or against. Face it, the Senate doesn’t have to hold hearings, schedule any votes, or otherwise consider said nomination. Look at this way. If Congress passes bill and send it to the President, he has 10 days to veto it or it becomes law. That’s in the Constitution. If the President submits a nomination to the Senate, the Constitution is silent on how the Senate handles it, and there is no analogous Constitutional timeframe requiring a vote. If the Senate wants to wait until Feb 2017, they can, under the Constitution. ---
**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 21, 2016, 3:06pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/533 "2016-02-21T15:06:15Z")
> [@D\_Anconia](#): > > Face it, the Senate doesn’t have to hold hearings, schedule any votes, or otherwise consider said nomination. Nor do they have to enact any legislation, or pass a budget. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [February 21, 2016, 3:24pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/534 "2016-02-21T15:24:54Z")
> [@D\_Anconia](#): > > Face it, the Senate doesn’t have to hold hearings, schedule any votes, or otherwise consider said nomination. And one would hope that such as Portman and Toomey will pay the political price for that. _shrug_ Personally, I think the Republicans will cave, but we’ll see. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [February 21, 2016, 3:38pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/535 "2016-02-21T15:38:22Z")
It would be interesting to have the SC adjudicate what “shall” means. _Is_ there any remedy if a president declines to nominate indefinitely, or the Senate refuses to consider indefinitely? The former seems improbable but, in the case of the democratic candidate prevailing for the Presidency in November, what stops a Senate controlled by the GOP (or in some hypothetical reversed circumstance) from simply refusing to consider any candidate, not only for this empty seat, but for any others that might come up, preferring to wait until they eventually have a President of their party in the office? ---
**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 21, 2016, 3:46pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/536 "2016-02-21T15:46:40Z")
> [@CarnalK](#): > > Well we agree that the “shall” obviously requires the President to act. Let’s say Clarence Thomas kicks it tomorrow and suddenly we have a “liberal” odd numbered court. If Obama and then Hillary just decide not to put anyone in until a liberal dies, what’s the recourse? Congress could impeach and remove from office. Otherwise, none. Are you going to arrest the president for being too slow in nominating someone? There is no statute you could invoke to do so. > [@DSeid](#): > > what stops a Senate controlled by the GOP (or in some hypothetical reversed circumstance) from simply refusing to consider any candidate, not only for this empty seat, but for any others that might come up, preferring to wait until they eventually have a President of their party in the office? E Plebnista! ---
**Author:** ![MaxTheVool](https://avatars.discourse-cdn.com/v4/letter/m/9fc29f/32.png) [@MaxTheVool](https://boards.straightdope.com/u/MaxTheVool)\ **Post date:** [February 21, 2016, 4:53pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/537 "2016-02-21T16:53:02Z")
It’s an entirely rational and consistent position to believe that, should the senate fail to hold a hearing and vote for a particular nominee, they are clearly failing to uphold their duties as outlined in the constitution (and taking actions injurious to the long term functioning of the US governmental system as a whole); while at the same time believing that there is no actual legal consequence they should face for that action. ---
**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 21, 2016, 4:59pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/538 "2016-02-21T16:59:26Z")
Exactly. I think it’s clear that they are failing in a duty given to them but realize there’s not much that can be done about it. ---
**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 21, 2016, 5:50pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/539 "2016-02-21T17:50:50Z")
Except that the duty to formally consider a nomination is exactly the same as the duty to consider legislation. Failure to consider a particular nomination or a particular bills may constitute a failure of judgment, but not a failure of a constitutional obligation. ---
**Author:** ![MaxTheVool](https://avatars.discourse-cdn.com/v4/letter/m/9fc29f/32.png) [@MaxTheVool](https://boards.straightdope.com/u/MaxTheVool)\ **Post date:** [February 21, 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/746067/540 "2016-02-21T17:54:49Z")
> [@Ravenman](#): > > Except that the duty to formally consider a nomination is exactly the same as the duty to consider legislation. Failure to consider a particular nomination or a particular bills may constitute a failure of judgment, but not a failure of a constitutional obligation. I think the worst effect of a presumed failure-to-do-anything will be the setting of precedent. What happens the next time a SC seat comes open with, say, 18 months left in the president’s term? 2 years? 2.5 years? It’s obvious to the most casual observer that this sort of action has been technically allowable since forever, but also that once congresses started doing it, then it just increased gridlock and decreased the actual ability for the government to function. But until now, no congress so put party interest ahead of national interest to actually take that step. [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=26) [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=28)