A move to block any Obama nominee to the Court
on Feb 23, 2016 at 2:31 pm
All members of the Republican majority of the Senate Judiciary Committee vowed on Tuesday to take no action, including a refusal to hold any hearings, on any Supreme Court nominee proposed by President Obama. In a letter to the Senate’s majority leader, the panel’s eleven Republicans said they would only consider a nominee after a new president is in office next January 20.
If that position does result in thwarting any Obama selection, the Court probably would not get a ninth Justice until March or April of next year — the longest period in modern history that it would have gone without a full bench — perhaps seriously compromising its work not only for the rest of the current Term, but for much of the following Term. It is unclear whether any part of the Senate would have the power to overrule the committee’s majority, or to move forward with a nominee without a hearing unless such a move had unanimous consent of the Senate.
The GOP lawmakers cited the same reasoning that Republican leaders have previously given — that is, the American people should have a voice, through their election of a new president, on how the crucial vacancy on the Court is filled. They said they were acting out of “necessity” to preserve that option for the people.
It is unclear whether President Obama would have any opportunity, while he remains in office, to place a new Justice on the Court — as, for example, by a recess appointment. The same Congress will be in session before the election on November 8, and will reassemble for what is called a “lame duck” session, after the election. A newly elected Congress would take over next January 3.
In any interval after the election and before January 3, the Republican leadership of the Senate could block any recess appointment by Obama by scheduling routine sessions every three days even while the Senate is out of town and doing no business. Under Supreme Court precedent, a recess must be at least ten days long before any recess appointment could be made.
Whoever is elected as the new president would not have the power to make any nomination until after being sworn in on January 20, with a new Congress then in session. It almost certainly would take at least two months to get a nominee approved.
