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[.]

At some point, most presidents have probably gotten annoyed by something the Supreme Court did. Could the President decide to stop appointing Supreme Court judges, in violation of this duty ("shall"), even to the point where no judges remain?

This seems like it would be harder to do legally than the Senate abolishing the Court (see question on that over here).

Alternatively, could the President satisfy his duty while still reaching the same end by nominating only candidates who (s/)he knows will never be confirmed (e.g. because they are nowhere near qualified)?

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

A much narrower related question: Could President Obama do as Sen. McConnell says and leave the SCOTUS nominations to the next President?


As far as I know, no single president has ever been in office long enough to see all supreme court judges retire, resign or die. So waiving his right to appoint new judges would just achieve two things:

  • He would have less judges in his favor than if he'd just appoint a new one.
  • He would help the next president, possibly from the other party, who could then appoint more judges to his taste, or possibly reap the rewards by not doing so.

I guess no sane president would do that (and no insane president, either).

  • 2
    I know what you're trying to say, like "even if this was a waive-able right, no President would do this...", but just to be clear, it isn't a waive-able right, it is a constitutional duty.
    – user3851
    Feb 17 '16 at 17:56
  • 1
    @Viktor In the United States, we call this a constitutional requirement. If the constitution says "[The President] shall nominate...", the legal answer is there is a requirement.
    – user3851
    Feb 17 '16 at 23:05
  • 1
    @Viktor Look at Supreme Court decisions on interpretation of the constitution. If the constitution clearly says something, the political branches do not have the leeway to do otherwise. Marbury v Madison is a good start.
    – user3851
    Feb 17 '16 at 23:09
  • 1
    @Viktor In Baker v Carr, the court weakened their previous "political question" doctrine. They found that the question in that particular case was not a political question and was judicially decidable. Even under the political question doctrine, a question was deemed a political question when the constitution doesn't provide a guide. In the case of whether the president needs to make a Supreme Court nomination, the constitution clearly does give instruction.
    – user3851
    Feb 18 '16 at 0:03
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    @Viktor Dawn appears to have deleted his or her account, but I would point out that your two positions are not incompatible. It is true that the constitution (on a literal or "facial" reading) requires the president to nominate (and, with advice and consent of the senate, appoint) justices; it is also true that the only mechanism for enforcing that requirement is impeachment. In other words, it is both a requirement and a political question. It's not even desirable to have a mechanism to force a president to submit a nomination, since that would just encourage gridlock.
    – phoog
    Jan 23 '19 at 15:57

Shall means shall. It has never been held to mean otherwise and there is no fair reading of this clause that gives the meaning that nomination is optional.

(This part is about political consequences, but if a President did this, they may be impeached or at least not elected again.)

  • How would they be impeached? AFAIK, not nominating a justice is not treason (which consists only of making war against the U.S. or aiding those doing so,) bribery, or any "other high Crime or Misdemeanor." See Article II, Section 4.
    – reirab
    Feb 18 '16 at 21:13
  • 5
    @reirab "High crime or misdemeanor" is a term of art that is almost all-encompassing. Dereliction of a constitutionally required duty would certainly be within the scope of that clause. Here's some background.
    – user3851
    Feb 18 '16 at 22:19
  • Shall means shall, but there is no mechanism to enforce this duty. The courts would not entertain a suit for an injunction requiring the president to nominate a Justice, or indeed anyone for any office, since that is an exercise of judgement by the President, not an automatic, mechanical act. Oct 22 '18 at 23:57
  • @DavidSiegel "there is no mechanism to enforce this duty": there is the threat of impeachment. Does your statement depend on the fact that impeachment doesn't directly compel the president to make a nomination?
    – phoog
    Jan 23 '19 at 16:01

No. The Constitution stipulated the Supreme Court. That is the only one. It gave Congress the job of setting it up. The President may not do away with it.


The Court is established by the Constitution, and no President can "abolish" it. However, there is no mechanism to compel a President to make nominations to the court, much less to nominate qualified people. Congress could impeach for this, if the House saw fit to pass Articles of Impeachment, and the Senate saw fit to convict.

Historically, when a President (FDR) was sufficiently unhappy with the court, he tried the opposite approach; he requested Congress to increase the size of the court so that he could appoint additional justices and thus secure a majority. There was political opposition, one Justice started to vote differently, and the law was never passed. The cause-and-effect sequence here is not clearly established, however.

See Wikipediua's Judicial Procedures Reform Bill of 1937 article.

  • It's also worth noting that certain aspects of the court's functioning (for example, quorum) are determined by statute, which means they can only be changed without the president's consent by the 2/3 supermajority of both houses that is needed to override a veto.
    – phoog
    Jan 23 '19 at 16:04

This seems like it would be harder to do legally than the Senate abolishing the Court (see question on that over here).

No. It would be much easier. The Senate can't abolish the U.S. Supreme Court nor can Congress or any law short of a constitutional amendment, although Congress may, by law, limited or modify the jurisdiction of the U.S. Supreme Court. And, the Senate can only prevent the President from making a recess appointment to the U.S. Supreme Court (which would only last for the duration of the legislative session) by not going into recess.

But, the President can very easily decline to nominate new justices. Nothing could stop him. No one could compel the President to appoint someone.

Now, the trouble is that most Presidents are not faced with enough vacancies during their term of service to abolish the Supreme Court (in an eight or conceivably up to ten year term, if the President previously served two years after being elevated from Vice President). By not nominating anyone or by only nominating candidate who will not be confirmed by the Senate, the President is essentially giving his successor more power by freeing up more seats that his successor can fill by nominating someone to fill. So, no President would use that strategy.

  • "Congress may, by law, limited or modify the jurisdiction of the U.S. Supreme Court": this power is not unrestricted, however, is it? Certain aspects of the court's jurisdiction are established by the constitution, not by statute. "No one could compel the President to appoint someone": a majority of the house of representatives and 2/3 of the senate might be able to, though as a political matter rather than a legal one.
    – phoog
    Jan 23 '19 at 16:05
  • ""Congress may, by law, limited or modify the jurisdiction of the U.S. Supreme Court": this power is not unrestricted, however, is it?" That is a question that was discussed actively in both my undergraduate con law class and in my law school one. It doesn't have a definitive answer and, as always, context can matter. Effectively, SCOTUS has no jurisdiction over some interlocutory orders.
    – ohwilleke
    Jan 23 '19 at 22:12

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