# 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:** 29
**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 22, 2016, 12:31am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/561 "2016-02-22T00:31:17Z")
> [@CarnalK](#): > > 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. There’s no requirement to give advice. But again, how do you get from “by and with the advice of the Senate, [the President] shall appoint…” all the way to “the Constitution requires hearings and probably a vote?” Your position is all made up. You might as well say the Constitution owes nominees at least a handshake and a meaty sandwich. ---
**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 22, 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/746067/562 "2016-02-22T00:44:42Z")
There is a requirement to give advice in the same as the the President is required to nominate someone. And if that’s not required, then the Founding Fathers decided to leave an obvious loophole to kill off a branch of government. You believe that? But again, if it doesn’t reach the Senate floor or a least committee level, one cannot consider it advised on by the Senate. Pretty simple logic here. ---
**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 22, 2016, 1:50am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/563 "2016-02-22T01:50:47Z")
But it simply doesn’t say the Senate must provide advice. The two “shalls” refer to the President’s role in nominating and appointing. The Framers saw that the appointment process could get derailed, even with a Senate acting in good faith. That’s why there is a recess appointment clause. ---
**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 22, 2016, 2:01am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/564 "2016-02-22T02:01:13Z")
> [@CarnalK](#): > > There is a requirement to give advice in the same as the the President is required to nominate someone. And if that’s not required, then the Founding Fathers decided to leave an obvious loophole to kill off a branch of government. You believe that? > > But again, if it doesn’t reach the Senate floor or a least committee level, one cannot consider it advised on by the Senate. Pretty simple logic here. If there is a “requirement to give advice” then there is a requirement to give consent. Simple logic. But surely the Senate is not required to give consent. You should note that it is “by and with”, not just “with”. ---
**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 22, 2016, 2:36am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/565 "2016-02-22T02:36:34Z")
First, as to the [makeup of the Supreme Court](http://www.history.com/news/history-lists/7-things-you-might-not-know-about-the-u-s-supreme-court)… the Founding Fathers started us off with a 6 member court. Its been 7, 9, 10, and 7 before settling on the current 9 member court. There is no constitutional requirement to have 9 members, or an odd number of members. Some form of a [State of the Unio](https://www.archives.gov/legislative/features/sotu/)n communication is constitutionally required. Washington and Adams gave in persons statements, but Jefferson discontinued the practice. It was only in the 20th century that Woodrow Wilson gave a speech before a joint sitting of Congress setting a precedent that became the defacto means of doing so. And as for court (and other) nominations… there were dealt with by the full Senate without any judiciary committee, for many years. Certainly there is no requirement for a committee hearing. The Senate, as is its constitutionally granted right, sets its own rules to decide how to deal (or not deal) with pending matters including nominations. ---
**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 22, 2016, 5:07am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/566 "2016-02-22T05:07:32Z")
> [@John\_Mace](#): > > If there is a “requirement to give advice” then there is a requirement to give consent. Simple logic. But surely the Senate is not required to give consent. > > You should note that it is “by and with”, not just “with”. Simple pretzel logic maybe. Advise and consent occur at different times and are logically separate operations not depending on each other for their meaning. voting up or down is required, and is part of consent. Are you playing a semantic game? ---
**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 22, 2016, 8:11am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/567 "2016-02-22T08:11:13Z")
> [@drad\_dog](#): > > Are you playing a semantic game? What a silly question. Instead of addressing the obvious - republicans pissing all over the constitution they claim to revere in order to get their way - we’re going to spend the next eleven months discussing the words, “shall,” “by,” and “with.” ---
**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 22, 2016, 1:45pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/568 "2016-02-22T13:45:06Z")
They’re not “pissing all over the constitution.” Logic and parliamentary decorum, perhaps. ---
**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 22, 2016, 6:02pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/569 "2016-02-22T18:02:00Z")
> [@Jack\_Batty](#): > > What a silly question. Instead of addressing the obvious - republicans pissing all over the constitution they claim to revere in order to get their way - we’re going to spend the next eleven months discussing the words, “shall,” “by,” and “with.” You talking to me?? ---
**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 22, 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/746067/570 "2016-02-22T18:10:41Z")
> [@drad\_dog](#): > > You talking to me?? Pretty sure he means the Republican party “is” pulling a Clinton. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 22, 2016, 8:29pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/571 "2016-02-22T20:29:31Z")
> [@drad\_dog](#): > > I can’t talk about tomorrow. But I see them hurting a lot. Look at the presidential race. Look who holds the majority in the U.S. Senate. The voters have, once again, spoken. If/when Obama gets around to offering up a nominee, the public debate over the nominee’s qualifications, biases, prejudices, and golf handicap will begin in earnest. In the mean time, the President does get to make nominations for the Supremes and the nominee does not actually become a Supreme unless the U.S. Senate confirms the nominee. No confirmation = not gonna be a Supreme. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [February 22, 2016, 9:48pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/572 "2016-02-22T21:48:01Z")
> [@doorhinge](#): > > Look who holds the majority in the U.S. Senate. The voters have, once again, spoken. I don’t think the Senate should be allowed to vote on anything until after the next election. It’s less than a year away. ---
**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 22, 2016, 9:53pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/573 "2016-02-22T21:53:29Z")
> [@Frank](#): > > I don’t think the Senate should be allowed to vote on anything until after the next election. It’s less than a year away. Agreed. The President should veto every bill that crosses his desk. Them’s the rules! ---
**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 22, 2016, 10:11pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/574 "2016-02-22T22:11:21Z")
Mark Kirk, the most vulnerable Republican Senator, says an [Obama nominee deserves a hearing.](http://chicago.suntimes.com/news/7/71/1343916/sweet-mark-kirk-says-obama-nominate-deserves-senate-hearing) ---
**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 22, 2016, 11:16pm UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/575 "2016-02-22T23:16:26Z")
> [@doorhinge](#): > > Look who holds the majority in the U.S. Senate. The voters have, once again, spoken. > > If/when Obama gets around to offering up a nominee, the public debate over the nominee’s qualifications, biases, prejudices, and golf handicap will begin in earnest. > > In the mean time, the President does get to make nominations for the Supremes and the nominee does not actually become a Supreme unless the U.S. Senate confirms the nominee. No confirmation = not gonna be a Supreme. Again you’re playing a very short sighted game here. the party is falling apart as you watch. You think todays majority means diddley when you are tearing yourselves new ones every day with new lows of illogic? These rebupkis are saying he shouldn’t even bother, because it’s just not fair. Yet not one of them has said he would forego making his own nomination if he were POTUS. The only place where this is a winner for rebupkis is for those who like to post on forums. “Please lock me away, and don’t allow the day, here inside where I hide…” Peter and Gordon ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [February 23, 2016, 12:15am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/576 "2016-02-23T00:15:11Z")
Joe Biden is [on record](http://politicsandfinance.blogspot.co.uk/2016/02/political-hypocrisy-go-figure-in-1992.html) as saying > [@](#): > > that a President in the last year in office SHOULD NOT nominate a replacement to the Supreme Court! And he goes on to say that if President Bush did nominate a replacement that the Senate Judiciary Committee should not schedule confirmation hearings. ---
**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 23, 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/746067/577 "2016-02-23T00:23:19Z")
> [@Quartz](#): > > Joe Biden is [on record](http://politicsandfinance.blogspot.co.uk/2016/02/political-hypocrisy-go-figure-in-1992.html) as saying That is not an accurate representation of what he [actually said in total](http://thinkprogress.org/justice/2016/02/22/3752298/no-joe-biden-didnt-say-that-the-senate-should-block-supreme-court-nominees-during-an-election-year/). He specifically said that he would consider supporting a moderate nominee. ---
**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 23, 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/746067/578 "2016-02-23T00:44:28Z")
What he is saying is that the president shouldn’t nominate anyone until after the election. That’s quite different from saying the president should not nominate anyone at all. This was also happening in June, not February. ---
**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 23, 2016, 12:54am UTC](https://boards.straightdope.com/t/will-congress-forestall-every-attempt-by-obama-to-appoint-a-new-justice-for-the-rest-of-his-term/746067/579 "2016-02-23T00:54:26Z")
Not to mention the fact that just because he’s the vice president now doesn’t mean he wasn’t wrong a half a century ago, either. Has he commented on his comments yet? ---
**Author:** ![CaptMurdock](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/captmurdock/32/11736_2.png) [@CaptMurdock](https://boards.straightdope.com/u/CaptMurdock)\ **Post date:** [February 23, 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/746067/580 "2016-02-23T01:03:29Z")
> [@doorhinge](#): > > Look who holds the majority in the U.S. Senate. The voters have, once again, spoken. Approximately 36% of the voters spoke in the 2014 midterm. Pardon me if I don’t feel like being held hostage by a fanatical fringe. [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=28) [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=30)