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Article II, Section 2, of the US Constitution states:

[The President] 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[.]

Could the Senate legally just decide that no more appointees would be confirmed and positions left vacant, for a long period? Are there limits on "long period?" (A more extreme version of the question is here.)

This question is, of course, motivated by current happenings and statements from the Senate Majority leader that "no Supreme Court nominee from President Obama would be considered."

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    Senate has no obligation to confirm a nominee
    – Viktor
    Feb 16, 2016 at 15:17
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    @Viktor but do they have some obligation to at least consider one?
    – WBT
    Feb 16, 2016 at 15:32
  • This is the question I was going to ask.
    – Rathony
    Feb 16, 2016 at 16:08
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    @cpast Feel free to answer either version and indicate which one you picked. Political conditions or political pressures are not part of this question, though - that would be Politics, not Law.
    – WBT
    Feb 16, 2016 at 16:13
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    @KeithS That's not true in the slightest. For starters, you'd need someone to be able to sue, and it's really hard to get standing to sue in cases like this. Also, the courts only consider questions which are proper for the judiciary to resolve. Not all of the Constitution is for the judiciary to apply; some parts are exclusively for the democratically elected branches to decide on. Especially with a nomination to the judiciary, it's not at all a stretch to imagine that the judiciary must leave the process to the elected branches (as they must with impeachments).
    – cpast
    Feb 18, 2016 at 0:35

2 Answers 2

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The Senate is under no Legal obligation to consider any particular nomination in any way. Some people have asserted that there is a constitutional duty imposed by the phrase "advise and consent" but that view has never commanded significant support, nor has any court that I know of included such a view in a decision. In general, US courts would consider this a political question and would dismiss any case that attempted to compel the Senate to consider such a matter.

The only way to impose such a duty on the Senate would be through a constitutional amendment. For example, an amendment could provide that if a nomination is not voted on by the senate within 180 days, it will be deemed approved and the nominee confirmed. The chance of such an amendment being proposed and ratified seems low, but one never knows. Until and unless some amendment is passed and ratified on the topic, the Senate is free to simply ignore nominations if it so chooses, for any reason or none.

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There is no requirement in the Constitution that the Senate confirm anyone by a certain deadline. The longest delay in U.S. history was over a vacancy on the Fourth Circuit Court of Appeals, lasting more than 16 years, from 1994 until James Wynn was confirmed in 2010.

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