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As a follow up from this question, suppose the Senate got tired of the "pesky" Court overturning its laws. Or, suppose that additional elections produced Senate majorities of a different party than the President, such as a continuation of the 2016 arrangement. Could the Senate simply decide to stop confirming Presidential nominees to be judges on the Supreme Court, even after there are no judges left on the Supreme Court? If not, why not?

If unclear, absent a Supreme Court to authoritatively interpret the constitution, who would decide the answer?

While we would hope the "no judges remaining" would take a while, a disaster or major attack could cause such a situation to arise within a short period.

If so, this would be an interesting twist in constitutional law, that the Founding Fathers may not have considered.


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[.]

A separate question about if the President could do something similar is here; they seem separate because of the stronger duty to nominate ("shall") imposed on the President.

Could is intended to refer to legally could; political feasibility considerations would be at Politics, not Law.

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    Yes the Senate could stop confirming judges. Our constitution believes in separation of powers, and a democratic republic. That's why we give our elected officials the tools to put this country in a standstill. – Viktor Feb 17 '16 at 16:29
  • Sen. John McCain has said that if Hillary Clinton is elected, Republicans will unite to block anyone she nominates to the Supreme Court. Vacancies on the Court during her term would be left unfilled. This would likely continue until there is alignment between the party controlling the White House and Senate. – WBT Oct 18 '16 at 13:52
  • Sen. Richard Burr has also stated his intention to block Democrat-nominated justices and ensure the vacancy(-ies) remain open. – WBT Nov 1 '16 at 16:06
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    Congress can also change (either with the president's signature or by overriding a veto) the size of the court and the number of justices that constitutes a quorum, which are both determined by statute (28 USC 1). Two thirds of both houses (or a majority of both plus the president) could therefore shut the supreme court down instantly by setting the quorum at a higher number than the current size of the court and refusing to confirm any new appointments. – phoog Oct 23 '18 at 14:50
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    @Kidburla That would require a supermajority of states to approve. – WBT Nov 9 '18 at 14:01
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If the Senate took the extreme measure of attempting to abolish the Supreme Court, there's nothing in the Constitution that requires them to confirm any of the President's nominees. However, attempting to dismantle one of the 3 branches would be nothing short of a coup d'etat.

The president has some options here:

He [the President] may, on extraordinary Occasions, convene both Houses [of Congress], or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper. -- Article 2, Sec. 2

Basically, this means that, in an extraordinary circumstance (total defiance of the entire Senate would easily qualify), the President can lock the Senate in their chamber until they straighten their heads out. And when I say "lock them in", I don't mean that figuratively. The Constitution requires that a majority of each house be present to constitute a quorum to do business. The President could order up to 51 Senators to convene, and if they refused, could order the FBI or whoever to physically arrest them and drag them to the capitol building. This was actually done in Wisconsin by Gov. Scott Walker in 2011 when 14 Democrat Senators fled the state to avoid the quorum needed to vote on a controversial bill that they couldn't block. It would be messy for sure, and as far as I know, has never been done with the U.S. Senate. But there is precedent for it.

Additionally, the President could use his vacancy power and just appoint a justice. Legally, he would have to wait for the Senate to be in recess, and the Senate would likely arrange things so that never happens. However, if there were no justices left, he could just appoint a Chief Justice (the Constitution provides that there be at least 1 justice). Even if he did this in the most "in-your-face" illegal way, with both middle fingers extended, the only judge that can tell him he did wrong is the guy he just seated. Of course, the Senate would move to impeach that judge, and probably the President too for having appointed him illegally, but you need a supermajority of both houses to remove them from office. If you had such a supermajority, then the game is over at this point; there's no way the President would step down in such a situation (who would force him?) and we're in a civil war because we don't have a functional government anymore.

In reality, this isn't an "interesting twist in constitutional law that the Founding Fathers may not have considered." It's that if Congress ever went totally off the rails like that, the President, or the people would have to step up and hope they could end the standoff peacefully without resorting to violence, because this is the kind of thing that revolutions are fought over.

  • Reading this was a thrill to imagine. Great work. – sondra.kinsey Nov 2 '18 at 13:32
  • Your quote is from section 3 actually, not section 2... – Kidburla Nov 9 '18 at 0:10
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    It's not so much a question of "who would force him"; if Congress did impeach the president, he would no longer be president according to Article 2 Section 4, then at that point the Vice President would automatically become President, and could exercise any of the powers of the President like directing the FBI to remove the (now) former President from the White House – Kidburla Nov 9 '18 at 0:16
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The Senate changes every two years with 1/3 being up for election each time. If successive Senates continuously fail to consent to Presidential nominations for the Supreme Court, the people could replace these members. The President can also make recess appointments(appointments made while the Senate is in recess) that are non-permanent. Justice Brennan was initially a recess appointment.

2

Instead of just refusing to confirm nominees to fill vacancies, Congress (as a whole, not just the Senate) could pass an act reducing the size of the court, like the Judiciary Act of 1801 which cut the Supreme Court from six justices down to five.

They also don't always have to wait for vacancies to be at least temporarily effective.

Congress as a whole could at least temporarily get rid of the court, and used that power to prevent the Court from meeting in 1802. They did this by changing the dates when the Supreme Court would meet from a standing schedule of a session that was then still in the future (June) to dates that were then in the past (February). This was in the Judiciary Act of 1802 (which was passed by the opposing political party and repealed the Act of 1801).

While both of those particular Acts of Congress had the President's support, the President's consent is not always required (vetoes can be overridden).

  • Per article III, section 1 of the Constitution, they can't reduce the number of Supreme Court judges below 1. – Mark Oct 23 '18 at 2:04
  • @Mark that is only implicit in the section you cite, which simply says that there shall be a supreme court. – phoog Oct 23 '18 at 14:48
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Short Answer

Could the Senate simply decide to stop confirming Presidential nominees to be judges on the Supreme Court, even after there are no judges left on the Supreme Court?

Probably yes. The Merrick Garland nomination seems to provide a precedent for this kind of action.

Long Answer

I don't believe that it is possible to provide a definitive answer to this question. It would trigger a constitutional crisis (or at least set the scene for a constitutional crisis when a case in the exclusive jurisdiction of the U.S. Supreme Court arises and has no tribunal to resolve it) and in a crisis there is no reliable way to determine what result would follow.

Keep in mind that the absence of a quorum on the U.S. Supreme Court does not constitute the absence of a judicial branch. Federal district courts and federal courts of appeal would continue to function and could rule on any justiciable legal issue presented.

It isn't obvious, however, that a loss of a U.S. Supreme Court quorum due to a failure of the Senate to confirm any appointments or to go into recess allowing a recess appointment to be made on a temporary basis, would give rise to a justiciable issue. It is more likely that the courts would see this as a political question.

But, I wouldn't bet a dime on the federal courts ruling one way or the other if presented with what is largely a question of first impression even if there are a couple of historical analogies.

For example, I could see a court saying that the lack of a discretionary appeal to the U.S. Supreme Court does not violate the constitutional rights of a litigant, but that there is a constitutional right to an alternative remedy of some sort to be crafted by a lower court when the U.S. Supreme Court lacks the appointees to function, in cases within the original jurisdiction of the U.S. Supreme Court or even in cases where there is a non-discretionary right to an appeal under the law. Congress can't deprive someone of due process through inaction. I could also see a lower federal court finding that the lack of a discretionary appeal from a state's highest court violates a due process right to some federal forum, even though no fundamental right is violated by a lack of a discretionary appeal from a federal court of appeals decision.

By analogy, when a state legislature fails to adopt a redistricting plan that complies with the constitution, which is normally a political question, this failure to act allows a federal court to craft a redistricting plan as a remedy for the failure of the legislature to act, in order to protect the constitutional rights of voters and candidates in future elections, even though no express language of the constitution or statute addresses the remedy when a state legislature fails to pass a redistricting plan. I could even imagine a trial court appointing temporary U.S. Supreme Court justices from judges on the existing Article III judiciary, if the U.S. Supreme Court lacked a quorum and someone had a right to U.S. Supreme Court due process, which would serve until the President and Senate filled the vacancy, or until the claimant with the due process right's claim was moot or was resolved.

Alternately, lower federal courts could decide that this presents a conflict between the provisions of the constitution for amending the constitution and those for appointments (as well as the constitutional right of certain litigants to original jurisdiction in the U.S. Supreme Court which often has exclusive jurisdiction of such cases denying due process to someone with such a case and no court to hear it) and find that one or the other is violated either way because the Senate's failure to act was in substance an unconstitutional amendment to the U.S. Constitution by the U.S. Senate acting alone. On that theory, a sensible remedy might be for the court to declare that the U.S. Senate if it fails to act within X days will be deemed to be in recess so that the President may make a recess appointment. What constitutes a recess was recently held to be justiciable in a case involving recess appointments to the NLRB, and this unique situation could be held to be a special and unique exception to the general rule regarding recess appointments set forth in that case. This has the virtue of maintaining separation of powers and of using a close analogy to a situation contemplated in the original constitution by its drafters.

Of course, in light of the current composition of the U.S. Senate and the current President, and the precedent that the "nuclear option" can abolish the filibuster for some kinds of judicial appointments (a parliamentary ruling which is almost surely not justiciable due to express language vesting procedural questions in the U.S. Senate in the Senate and not the courts in the U.S. Constitution), this question is unlikely to present itself any time soon.

0

The Congress has a power to impeach the President, thereby removing him from office, on the grounds that he has committed high crimes or misdemeanors, a vague offence (so vague, the Constitution basically leaves it up to the Congress to interpret what it means).

If the President refused to fulfill his Constitutional obligation to appoint Judges to the Supreme Court, he could be potentially got rid of under this power to impeach him (with all Congressmen united in their view on the issue).

So it might make more sense for him to appoint only judges who support him, by which action he fulfills his obligation under the Constitution and avoids the aforementioned possibility.

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