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The related question, Could the President abolish the Supreme Court?, addresses the extreme situation, whether a President could realistically shirk his Constitutional duty to appoint new SCOTUS justices indefinitely until all sitting justices had died/retired, and by so doing indefinitely prevent the Court from hearing or deciding any cases.

This question is more narrow and more practical. With Scalia's death, Obama is seemingly bound by the Constitutional definition of his office under Article 2, Section 2 to appoint a replacement. However, Senate Majority Leader Mitch McConnell has said that he believes the next President, not Obama in his lame-duck last year, should choose Scalia's successor, and has made it clear he intends to block the confirmation process of any Obama SCOTUS appointee any way he can.

The question is simple; does President Obama even have the option of not nominating a replacement, leaving that task to his successor as McConnell says he should, or does Article 2, Section 2 require him to at least put forth a nomination before he leaves office? Obama himself has said he does not believe he can do anything other than appoint someone.

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Perhaps there is a date beyond which it would not be possible to do the work necessary to vet and nominate a candidate before the end of term for the President and Congress. However, we are clearly on the "there's still time" side of that line.

  • I assume you purposely didn't say there would need to be time for the candidate to be confirmed too? In other words the President could nominate someone on his last day in office? – TTT Feb 26 '16 at 16:18
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The President and the Senate have a duty under the Constitution to appoint a Justice to the Supreme Court.

If either the President or the Senate fails to discharge their duty then a person with standing, presumably any US citizen with a case before the court would qualify, could petition the court (presumably the Supreme Court) for a writ of Mandamus to force them to do so.

No express time limit is given for how long they must take to discharge their duty so the common law rule is that it must be done within a reasonable time. Now, there is a long history of appointing Justices to the Supreme Court so what a reasonable time is could be determined. If a reasonable time (whatever that turns out to be) has not elapsed then they have not (yet) failed to perform their duty and the writ would be refused.

In addition, the writ would also not be issued if the person concerned had a reasonable excuse for not performing the duty. A short-term President may well be able to claim that it is reasonable to allow the duty to fall to his or her successor. It is difficult to argue that a President with almost 1/4 of his term left to serve is "short-term".

Legally, a political reason shouldn't be accepted by the courts but the Supreme Court is itself rather political.

In practice of course, such a case would take so long that the decision would be superseded by events. That is, there will be a new President and Senate who will perform the duty before the court considers the case.

In addition, such a case would probably be doomed to fail as the court would leave no stone unturned in order to find a reason why they can decide the don't have jurisdiction. This is an area of the law they really wouldn't want to involve themselves in.

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    There's also a good chance that the court would refuse to consider the petition, on the grounds that it was a political question. Also, it's not at all clear to me that a random citizen would have standing in such a case. – Nate Eldredge Feb 18 '16 at 6:36
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    @NateEldredge I don't think it's a political question: the constitution imposes a clear legal duty. I think court would hate to involve itself in the case and would look for a way to rule lack of jurisdiction but I don't think this is it. – Dale M Feb 18 '16 at 8:47
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    @DaleM How on Earth would "any US citizen" have standing? As a general rule of thumb, the point of standing is to prevent that kind of thing -- you don't have standing just because you're a citizen. And injunctions against the President for non-ministerial tasks are not a thing the courts can normally do. – cpast Feb 18 '16 at 23:13

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