# 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:** 28
**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, 5:54pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/541 "2016-02-21T17:54:59Z")
Why is “wait for the next president” not advice? The SCOTUS is not prevented from functioning in the meantime. There is nothing in the constitution specifying the number of justices needed to be on the court. ---
**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, 6:10pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/542 "2016-02-21T18:10:46Z")
Because it seems to me that they should be giving advice on the nominee, not whether he should make a nominee. Is “I don’t think we want a Supreme court anymore. Nobody should ever be nominated again” valid advice? ---
**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 21, 2016, 6:28pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/543 "2016-02-21T18:28:43Z")
> [@CarnalK](#): > > 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. And the obstructionist Republicans are proud of that. Like the petulant children they are. ---
**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, 8:22pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/544 "2016-02-21T20:22:48Z")
> [@John\_Mace](#): > > Why is “wait for the next president” not advice? > > The SCOTUS is not prevented from functioning in the meantime. There is nothing in the constitution specifying the number of justices needed to be on the court. The court is hobbled by a failure to fill a seat, and an 8 man court. It changes everything. It’s not a luxury. How could it be interpreted that the prez must do something and that they do not need to , when they are referenced in the same clause as part of the process for Government to operate? Could they say “he didn’t appoint someone. He was bound to. Lets impeach” even though they refused to act out their part? What is the future of a party that would obstruct for a year for political treasure? Esp if they are saying it’s not a political body? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 21, 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/746067/545 "2016-02-21T20:32:04Z")
> [@drad\_dog](#): > > What is the future of a party that would obstruct for a year for political treasure? Esp if they are saying it’s not a political body? Obstructionism hasn’t visibly hurt them much so far, has it? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 21, 2016, 8:33pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/546 "2016-02-21T20:33:09Z")
> [@John\_Mace](#): > > Why is “wait for the next president” not advice? For the same reason “Go fuck yourself” is not advice. ---
**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, 9:01pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/547 "2016-02-21T21:01:35Z")
> [@drad\_dog](#): > > The court is hobbled by a failure to fill a seat, and an 8 man court. It changes everything. It’s not a luxury. How so? It changes the makeup, but everything you do to the court changes the makeup. > [@](#): > > How could it be interpreted that the prez must do something and that they do not need to , when they are referenced in the same clause as part of the process for Government to operate? > > Could they say “he didn’t appoint someone. He was bound to. Lets impeach” even though they refused to act out their part? > > What is the future of a party that would obstruct for a year for political treasure? Esp if they are saying it’s not a political body? Visit the GD there where we are discussing this. Look… the president doesn’t need any incentive to nominate someone. He is going to LOVE the idea of getting someone on the SCOTUS court. The Senate may or may not. But yeah, if the president failed to nominate someone, Congress could impeach. They can impeach him for anything they like. If you don’t like what the Senate is doing, you get to vote the bums out. If we don’t vote them out, then we’re not so concerned with the whole thing, and no harm is done to the democracy. That’s how democracies work. They don’t give us what is objectively the best government, they give us the government we want. ---
**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, 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/746067/548 "2016-02-21T21:15:21Z")
> [@John\_Mace](#): > > How so? It changes the makeup, but everything you do to the court changes the makeup. > > Visit the GD there where we are discussing this. Look… the president doesn’t need any incentive to nominate someone. He is going to LOVE the idea of getting someone on the SCOTUS court. The Senate may or may not. > > But yeah, if the president failed to nominate someone, Congress could impeach. They can impeach him for anything they like. > > If you don’t like what the Senate is doing, you get to vote the bums out. If we don’t vote them out, then we’re not so concerned with the whole thing, and no harm is done to the democracy. That’s how democracies work. They don’t give us what is objectively the best government, they give us the government we want. I was talking about appointment not nomination. They are part of the appointment process, not nomination. What kind of things are “done” to the court? The court with 8 members doesn’t function as it should as far as I can see. Maybe you could explain how an even numbered court fulfills the same function. Or even a court missing 2 or more members could. It’s not incumbent on sitting politicians to fill vacancies? Why pay all those lifers? Just have two dudes to hash it over. ---
**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, 9:22pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/549 "2016-02-21T21:22:15Z")
> [@ElvisL1ves](#): > > Obstructionism hasn’t visibly hurt them much so far, has it? I can’t talk about tomorrow. But I see them hurting a lot. Look at the presidential race. ---
**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, 9:31pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/550 "2016-02-21T21:31:43Z")
> [@drad\_dog](#): > > The court with 8 members doesn’t function as it should as far as I can see. Maybe you could explain how an even numbered court fulfills the same function. Or even a court missing 2 or more members could. It’s not incumbent on sitting politicians to fill vacancies? There’s no Constitutional requirement on the number of Justices. One could make the argument that if you can’t win over a majority in an even numbered court, then maybe the argument for overturning a case isn’t that strong. ---
**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, 9:35pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/551 "2016-02-21T21:35:02Z")
> [@MaxTheVool](#): > > 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? Just a hypothetical here - for those who think the Senate is obligated to vote. What happens if a nomination was made with just a few days left in a presidential term? Does the Constitution compel a vote on that nominee? ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [February 21, 2016, 9:54pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/552 "2016-02-21T21:54:56Z")
> [@Ravenman](#): > > Just a hypothetical here - for those who think the Senate is obligated to vote. What happens if a nomination was made with just a few days left in a presidential term? Does the Constitution compel a vote on that nominee? Obviously the text of the Constitution is arguable, but I’m certain its authors would have _expected_ any duly-submitted nomination to be considered, on any day of a President’s term. The way John Marshall’s was, for example–nominated _and_ confirmed more than two months after John Adams had lost his re-election bid. A President is supposed to serve–to assume all the responsibilities, to discharge all the duties of the office–until the very hour of his successor’s inauguration. ---
**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, 10:07pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/553 "2016-02-21T22:07:13Z")
> [@Ravenman](#): > > Just a hypothetical here - for those who think the Senate is obligated to vote. What happens if a nomination was made with just a few days left in a presidential term? Does the Constitution compel a vote on that nominee? It compels them to at least pretend they are going through the motions. I don’t get why this is so unclear. The Constitution says the President shall nominate a judge. The majority leader of the Senate is saying that he’s decided that no, that is not the current President’s responsibilty. He’s inserting a caveat into the Constitution and defenders are calling that his “advice”. ---
**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, 10:09pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/554 "2016-02-21T22:09:31Z")
> [@CarnalK](#): > > There’s no Constitutional requirement on the number of Justices. One could make the argument that if you can’t win over a majority in an even numbered court, then maybe the argument for overturning a case isn’t that strong. Not exactly a compelling reason to have an 8 man court for more time than is necessary. 4-4 cases will revert back to the lower court I think. It shouldn’t be necessary. It’s a stop gap situation. ---
**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, 10:14pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/555 "2016-02-21T22:14:48Z")
Congress could decide on an 8 member court if they wanted too, compelling or not. And many decisions require a super majority in the Senate, why not a 5/8 in the Court? ---
**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, 10:16pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/556 "2016-02-21T22:16:57Z")
> [@drad\_dog](#): > > 4-4 cases will revert back to the lower court I think. It means the decision of the lower court stands. In general, such decisions only apply to that court’s circuit. So you could have two courts reach different decisions on an issue, and both stand. I don’t see that as being a good thing. ---
**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, 10:31pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/557 "2016-02-21T22:31:10Z")
> [@Ravenman](#): > > Just a hypothetical here - for those who think the Senate is obligated to vote. What happens if a nomination was made with just a few days left in a presidential term? Does the Constitution compel a vote on that nominee? How many days is a few? 1? 4? 22? 335? Obviously, there’s a difference. How’s this? Trump wins the Presidency; the Democrats take the Senate; and Obama issues a metric shitload of nominations which the new Senate approves at light speed. ---
**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, 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/746067/558 "2016-02-21T23:31:21Z")
> [@Peremensoe](#): > > Obviously the text of the Constitution is arguable, but I’m certain its authors would have _expected_ any duly-submitted nomination to be considered, on any day of a President’s term. The way John Marshall’s was, for example–nominated _and_ confirmed more than two months after John Adams had lost his re-election bid. > > A President is supposed to serve–to assume all the responsibilities, to discharge all the duties of the office–until the very hour of his successor’s inauguration. Ok, so Obama makes a nomination two days before the Republican Senate adjourns sine die in December 2016. Is the Senate constitutionally obligated to hold a vote on that nomination before adjournment? > [@CarnalK](#): > > It compels them to at least pretend they are going through the motions. I don’t get why this is so unclear. Its unclear to me from where you draw the conclusion that the Constitution satisfied by the Senate “going through the motions,” as opposed to actually having a vote, if that’s what you think the Constitution requires. Are there other constitutional responsibilities that are satisfied with half-hearted efforts, as if a sullen teenager holds the post of chief executive? Like, if the President tried to give a state of the union to Congress, but traffic was really bad that day, so it just never happens. Is that constitutionally cool? ---
**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, 11:48pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/559 "2016-02-21T23:48:08Z")
> [@Ravenman](#): > > Like, if the President tried to give a state of the union to Congress, but traffic was really bad that day, so it just never happens. Is that constitutionally cool? He could just write a letter, like Jimmy Carter did in 1981. ---
**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, 11:48pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/560 "2016-02-21T23:48:47Z")
If it doesn’t reach even the Senate Judiciary committee, you can’t reasonably say the “Senate” has considered it. Not complicated. What’s unclear to me is how the majority party refusing to let it even get to committee can be considered the Senate giving advice. [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=27) [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=29)