Presidential Appointments To The Supreme Court: Four Things To Know About Obama And The Senate’s Role

Assuming Ted Cruz doesn’t get his way and make good on his promise to filibuster any Supreme Court candidate nominated to replace the late Justice Antonin Scalia, here are four things you may not know about the President and Senate’s role.

Most of the trivia about presidential appointments focus on elements of time. However, because the current environment among Democrats and Republicans is so fractured, it’s anyone’s guess how the events will play out in the judicial process during this election year, as stipulated by United States Constitution.

The Appointments Clause (or Article II, Section 2, Clause 2) specifies the role of the President of the United States with regards to installation of public officials, according to Heritage.

“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….”

There is a point of contention about the Founding Fathers’ meaning of the word “shall.” Democrats say it’s clear; Obama not only has the power to appoint a Supreme Court successor, but the law obligates him.
On the other hand, Republicans say there is room for debate over the meaning of the clause, and there is no time prescription.

Constitutional scholars agree that Scalia’s sudden death leaves the court in a quagmire. Further, the GOP stands to have several controversial issues upended should justices remain consistent with their historical ideologies and voting patterns.

The traditional tally is done with nine sitting Supreme Court justices to establish a simple majority in cases, according to CNN. If future results end with a tie, lower courts’ decisions are upheld.

With several pivotal cases being eyed (abortion, Obamacare challenges, voting rights, etc.), it’s understandable why the GOP is concerned. Strategically, the goal is to — as Donald Trump said in last night’s debate — “delay, delay, delay).”

Despite Obama’s pledge to carry out his “constitutional duties” for a presidential appointment, he may encounter bipartisan roadblocks along the way as these four examples show, citing an NPR report.

Twenty-seven months is the longest time the Supreme Court had a vacancy. John Tyler, the tenth POTUS, was known as “His Accidency.” At the time, he was the first vice president “elevated” to the office (running mate died). During this period, he set a record that holds today: Tyler had eight presidential appointments for the High Court that were withdrawn or rejected.

Louis D. Brandeis holds the record for waiting the longest period to be confirmed (125 days from nomination to approval). He got the nod only after 19 contentious public hearings. President Obama has less than 350 days remaining in office. Many think it’s unlikely that he will get enough votes to confirm any nominee.

The Supreme Court was vacant for 391 days (since nine justices were installed in 1869). Should Obama fail at pushing his appointment through the Senate — which he almost certainly will — the next president has until March 12, 2017, to break the standing record.

The year 1938 marks the last time a president had a nominee (Stanley F. Reed of Kentucky in 1938) confirmed to the Supreme Court. If there’s any consolation, it only took 10 days. Obama likely won’t get that lucky — and he probably knows.

[Photo by Mark Wilson/Getty Images]