It’s Obama’s Constutitional Obligation: The Next Supreme Court Justice

Update on March 15, 2016: Obama Chooses Merrick Garland for Supreme Court.  In choosing Judge Garland, a former prosecutor who has served on the Court of Appeals for the District of Columbia Circuit since 1997 and as its chief judge since 2013, Mr. Obama opted to select a jurist better known for his meticulous work ethic and adherence to legal principles than for an ideological bent.

So what can you do? There’s only one response – the same response you made when Republicans shut down the government because they didn’t get their way over the debt ceiling: You let them know they’ll be held accountable. Public pressure is the only way to get GOP senators to release their choke hold on the Supreme Court. Public pressure is up to you. Call your senators now, and tell them you want them to do their job. – Robert Reich (2016)


A President also might take into account whether the existing “balance” among the Court’s members (in a political party, ideological, demographic, or other sense) should be altered.


How the Politics for SCOTUS might play out.


  • The President always has the constitutional obligation to make nominations to the Court when vacancies arise, and is certainly aware of the possibility that vacancies could arise at any time.
  • A President’s search for excellence in a nominee, however, rarely proceeds without also taking political factors into account. Rather, “more typically,” a President “seeks the best person from among a list of those who fulfill certain of these other [political] criteria and, of course, who share a president’s vision of the nation and the Court.
  • Congress’s availability is less of an obstacle to speedy consideration of nominations than in the past. Given Congress’s increasingly year-round schedule, extended decision-making is more often the result of waiting for presidential decisions, background investigations of nominees, or preparations for Judiciary Committee hearings.
  • When the Judiciary Committee holds hearings, Senate floor consideration can be pushed back sometimes by weeks or even months.
  • When a Supreme Court vacancy occurs, Presidents sometimes move quickly, selecting their nominee within a week of the vacancy being announced.
  • Presidents also might be moved to nominate quickly in order to minimize the time during which there is a vacancy on the Court. If an actual vacancy is suddenly created — for example, due to an unexpected retirement, resignation, or death of a Justice — a President, as well as Members of the Senate, might be eager to bring the Court back to full strength as soon as possible. A similar sense of urgency might be felt if a Justice has announced the intention to step down from the Court by a date certain in the near future.
  • A swiftly made nomination, in such a circumstance, affords the Senate Judiciary Committee and the Senate as long as three months (July through September) in which to consider the nomination before the start of the Court’s term in early October, thereby increasing the chances of the Court being at full nine-member strength when it reconvenes.
  • On 12 occasions in our nation’s history (most of them in the 19 th century), Presidents have made temporary appointments to the Supreme Court without submitting nominations to the Senate. These occurred when Presidents exercised their power under the Constitution to make “recess appointments” when the Senate was not in session.
  • Despite the temporary nature of these appointments, every person appointed during a recess of the Senate, except one, ultimately received a lifetime appointment to the Court after being nominated by the President and confirmed by the Senate.
  • Many of the 16 were put forward by Presidents in the last year of their presidency — seven occurred after a successor President had been elected, but before the transfer of power to the new administration. Each of these “lame duck” nominations transpired under nineteenth century Presidents when the post-election period lasted from early November until early March.
  • Just as the President can begin considering a new nominee as soon as he knows a vacancy will arise, the Senate can begin preparing to consider a nominee as soon as the President announces his choice, even if the receipt of the formal nomination is still days or weeks away.


Virtually every President is presumed to take into account a wide range of political considerations when faced with the responsibility of filling a Supreme Court vacancy. For instance, most Presidents, it is assumed, will be inclined to select a nominee whose political or ideological views appear compatible with their own. “Presidents are, for the most part, results-oriented. This means that they want Justices on the Court who will vote to decide cases consistent with the president’s policy preferences.” The President also may consider whether a prospective nomination will be pleasing to the constituencies upon whom he especially relies for political support or whose support he would like to attract. For political or other reasons, such nominee attributes as party affiliation, geographic origin, ethnicity, religion, and gender may also be of particular importance to the President. A President also might take into account whether the existing “balance” among the Court’s members (in a political party, ideological, demographic, or other sense) should be altered. The prospects for a potential nominee receiving Senate confirmation are another consideration. Even if a controversial nominee is believed to be confirmable, an assessment must be made as to whether the benefits of confirmation will be worth the costs of the political battle to be waged. – Palmer, Betsy. Supreme Court Nominations (Updated). New York, NY, USA: Nova, 2009. ProQuest ebrary. Copyright © 2009. Nova.

My condolences to Justice Scalia’s family and friends on his passing.


Palmer, B. (2009). Supreme Court Nominations (Updated). New York, NY, USA: Nova. Retrieved from

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