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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[.]

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?

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  • You know, the Constitution does let him pardon murder within the District of Columbia, a federal territory where there are no state charges that could be brought. So, in theory, he could just assassinate all his opponents in the capital and there would be no legal recourse. In practice, of course, nobody would let him get away with it
    – Davislor
    Jun 9 at 16:57

8 Answers 8

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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).

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    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, 2016 at 17:56
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    @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, 2016 at 23:05
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    @Dawn on my phone rn, but take a look at Supreme Court decisions specifically on political questions.
    – Viktor
    Feb 17, 2016 at 23:07
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    @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, 2016 at 23:09
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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, 2019 at 15:57
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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.)

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  • 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, 2016 at 21:13
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    @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, 2016 at 22:19
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    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, 2018 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, 2019 at 16:01
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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 this Wikipedia article Judicial Procedures Reform Bill of 1937.

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  • 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, 2019 at 16:04
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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.

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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.

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  • "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, 2019 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, 2019 at 22:12
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Historically, the closest this has come to happening was in 1862. Three seats on the Supreme Court were vacant (one due to a justice resigning to join the Confederacy), the courts were also in the process of being reorganized so that the Supreme Court justice would no longer double as district judges, and the Senate was out of session from March to December 1861. President Lincoln therefore thought that nominating replacements was not one of his highest priorities.

However, two of the remaining six justices were in poor health, preventing the court from achieving a quorum of five.

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Leaving all of the seats in an appointed court or board vacant, or at least, without a quorum, is not equivalent to abolishing it.

For example, the U.S. Sentencing Commission has not had a quorum, and has hence been unable to conduct business requiring a vote, since 2019, three years ago. But, the U.S. Sentencing Commission still exists. Similarly, the Federal Election Commission went many months without a quorum but it still continued to exist. The federal Merit System Protection Board has likewise experienced long stretches without a quorum - it is currently going on five years.

A President's failure to appoint U.S. Supreme Court justices could cause that institution to go temporarily dormant. But, sooner or later, a subsequent President could fill the vacancies.

The lack of successful efforts to compel the President and the U.S. Senate to take action to fill vacancies on these boards and commissions (and the historic reality that many U.S. Courts have had long standing judicial vacancies) also strongly support the conclusion that the failure of the political process to fill U.S. Supreme Court vacancies would be a non-justiciable political question.

Presumably, cases in the exclusive original jurisdiction of the U.S. Supreme Court (e.g. disputes between U.S. states), and the handful of cases in which there is a direct appeal of right to the U.S. Supreme Court (mostly decisions of three judge district court panels on election law issues), would simply be dormant awaiting a quorum so that there could be ruling on the cases, until those cases become moot.

These cases make up on the order of 2% of the U.S. Supreme Court caseload (1-3 cases a year), and rulings on stays of matters pending before the U.S. Supreme Court that have not yet been ruled upon by the full court may be made by a single U.S. Supreme Court justice even in the absence of a quorum.

In the other 98% of cases that are only subject to discretionary review by certiorari or extraordinary writ by the U.S. Supreme Court, the lower court rulings of the U.S. Court of Appeals in question, the state supreme court, or the three judge district court panel for election law issues would stand (at least until the U.S. Supreme Court regained a quorum or the cases became moot).

As it is, "in the 2019-2020 term, the court issued written opinions in the fewest cases of any term in more than a century: 53, compared with 41 during the Civil War." This is so, even though the Court has nine justices and 36 law clerks, and the most polished and complete briefing of any U.S. court, to help it write these opinions. This year's similarly small docket had 33 cases awaiting a ruling on May 5, 2022 (a 70 year high), and while it is customary for the U.S. Supreme Court to clear its docket for its operating year by July 4, nothing forbids it from simply putting off ruling on all of its remaining cases for another year or two, as it has done in a handful of very well known cases such a Brown v. Board of Education.

It isn't uncommon for cases on appeal to take years to be finally ruled upon in every available forum.

For example, the two most recent executions in Arizona involved convictions that were more than three decades old.

So, the practical effect of a Supreme Court without a quorum for an extended period of time wouldn't necessarily even cause a constitutional crisis.

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Given the precedent of the 2015 Senate refusing to vote on giving consent on Obama's nomination of Garland to the Supreme Court, there should not be any requirement for the President to do so.

However, as stated in other answers, the impeachment process is unjusticiable, and should Congress impeach and remove a president for refusing to fill a Supreme Court vacancy, it would work. But if (somehow, and for some reason) all successive Presidents decided not to nominate anyone, it would effectively remove the Supreme Court and nobody, short of a constitutional amendment, could do anything about it.

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