US Constitution Article 2 says this about the appointments to the Supreme Court:

[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint (...) Judges of the supreme Court

Clearly, it seems to me, the Senate refused to follow the Constitution with respect to Merrick Garland, a judge he nominated to a vacancy on the Supreme Court, and President Obama, swore to "defend and protect the Constitution".

So it seems, it was President Obama's duty as the chief law enforcement official, to force the Senate to hold hearings, like, for example, order the hearings to take place and hold them with whoever the senators would show up, and enforce that order with law enforcement resources such as police and military.

Obama, having a law degree from Harvard, was certainly aware of all of that. Why didn't he fulfill his duty to enforce the Constitution?

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    I'm not sure this question on-topic. It seems to me it's either not asked in good faith (just trying to demean Obama), based upon a very faulty premise (the idea that the President can force the Senate to do anything, and further that he is compelled to do so by the quoted section), or both. – iamnotmaynard Jul 11 at 16:55
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    Where in the constitution does it give the Senate a deadline to act on nominations? If the Judiciary Committee wants to take a few months before it takes actions, is this unconstitutional? – Doug O'Neal Jul 11 at 18:41
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    @iamnotmaynard A faulty premise is not an issue. This is where questions and answers often come from. Sometimes faulty premises are held by a lot of people, which leads to exceptionally good and useful Q&A's. I didn't read it as an attempt to demean Obama, though I suppose I can see how it could be. – zibadawa timmy Jul 12 at 2:50
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    Since when was the US military a "law enforcement resource"? That's not what the military is for, at all. – David Richerby Jul 12 at 16:47
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    I think this question is missing the remarkable aspect of the Scalia vacancy. The Senate didn't refuse to hold hearings on Garland. They refused to hold any hearings on any nominee whatsoever, until Obama was no longer president. McConnell's announcement on Feb 13, 2016 was a full month before Garland was nominated. – De Novo Jul 12 at 22:00
up vote 57 down vote accepted

In short: separation of (coequal) powers means the President can't order any such thing of Congress. Congress does as it wills, and the constitution has very little to say about whether it does its jobs in any particular time frame, or even in any particular way.

Article 2, Section 3 of the constitution details the two things a President can force Congress to do (emphasis mine):

He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

So his only power over congress is to force them into session (in "extraordinary occasions") or to settle a disagreement on their adjournment. The last part I highlighted is also particularly relevant to your consideration. While Article 2, Section 1 does specify that he will take an oath to uphold the constitution:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Article 2, Section 3 above specifies only that he take care to faithfully execute the laws as an actual duty.

Congress has certain constitutional powers and obligations, but it sets its own rules on how it does these things in almost every instance. Article 1, Section 5 includes the clause:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

The Supreme Court has generally ruled that the rules of the houses are essentially non-justiciable: they are not subject to overview by the judicial branch. Even the constitutional requirement for a quorum in the House/Senate is in the sole purview of the rules of the chambers themselves, and the courts have no power to dictate or question when the requirement has or hasn't been met; only the houses themselves determine this, by whatever means they see fit, and if the rules say there's a quorum, then there's a quorum.

Obama, having a law degree from Harvard, and professional experience in constitutional law specifically (he was a professor thereof for a time), was certainly aware of all of that. At best he could have tried to exert political pressure on Congressional Republicans, say by being more forceful about the matter in public statements. Some people do feel he didn't do enough of this, some even feeling he should have done more even if it was guaranteed to not change the outcome. But that's more of a political contention than a constitutional one.

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    Re "...he was a professor...": Professors are not infallible, or necessarily even imaginative. It would be more correct to say Obama did everything he knew how to do under the circumstances, or did everything any competent orthodox lawyer would have known how to do. This might be more a case that the mind of political orthodoxy learns from a collective virtual handbook of useful strategies, and none of those would have worked -- but not every strategy has been invented, and a new one isn't logged in any virtual handbook until somebody first employs it. – agc Jul 11 at 18:25
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    @agc however professors of a subject are certainly much more likely to be well-informed on the subject than your dentist. – barbecue Jul 12 at 14:39
  • "The Supreme Court has generally ruled that the rules of the houses are essentially non-justiciable: they are not subject to overview by the judicial branch." I'm sure there's some simple reason why this limits the executive's influence on the legislature in this issue, but it'd be worth spelling it out. – J.G. Jul 13 at 18:16
  • @barbecue, Granted that a professor would be more well informed on established strategies, but not about new strategies that circumvent or surpass errors of orthodoxy. The classic real-life example is that professors seemed much more likely to know about aerodynamics than bicycle mechanics. – agc Jul 14 at 5:55
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    @Mehrdad The constitution requires that congress meet at least once a year (Article 1 and the 20th amendment specify this), so that would be the upper limit on any adjournment. No President has ever exercised this power, however. – zibadawa timmy Jul 16 at 5:43

It's worth noting that Obama actually did attempt an end-run around Congress in declaring that pro-forma Senate sessions were, in fact, a "recess" as defined by the Constitution. As such, he made some "recess" appointments to the NLRB.

The Supreme Court, 9-0, ruled in NLRB v. Noel Canning that it was unconstitutional for him to do that.

We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.

The Supreme Court would have likely viewed any attempt at another end-run in the same way.

  • Comments deleted. Please don't use comments for political debates. Politics.SE is a Q&A site, not a discussion forum. – Philipp Jul 12 at 10:27
  • Are you sure that the court would rule the same way if Obama had said 'I'm assuming your silence is consent, waited for several months, then simply appointed a new SC judge? If they did, the Supreme Court would be granting the Senate the ability to completely eliminate the Supreme Court. a ruling of 'the senate is convened if they say they are' is very different than 'the senate can decide to never again appoint anyone to the SC.' – Shane Jul 12 at 20:19
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    @Machavity The point here was that if the senate decides not to appoint 1 justice, and the supreme court rules that they are under no obligation to do so, what is to stop the senate from deciding not to appoint a second justice. A 3rd? 4th? etc. If the senate has the power to not appoint any justices, they have the power to, over time, completely eliminate the court. Since the constitution doesn't grant them that power, their ability to not appoint justices has to have some sort of limit. – Shane Jul 12 at 22:32
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    @Shane SCOTUS itself disagrees with that assessment, or they would not have ruled against Obama appointing board members without Senate approval. Understand that there would be a political price to pay for permanently blocking SCOTUS nominees. That would be the remedy available to a Senate totally blocking a nominee. Remember, you only need 51 Senators to confirm. – Machavity Jul 13 at 0:53
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    One can just as easily (perhaps more easily) interpret this situation as Congress trying an end-run on the President. The pro-forma sessions in question were held specifically to block the President's recess appointment power. Obama didn't just jump in opportunistically and unexpectedly. Congress knew he was willing to do a recess appointment, but still wanted to (mostly) go on break, so they did pro forma sessions. Obama challenged this, but the Supreme Court sided with Congress (somewhat predictably; they have a history of letting congress define terms itself for internal matters). – zibadawa timmy Jul 13 at 6:43

The Senate did decide. They decided by withholding their consent, and they decided that holding a hearing was a waste of time when their consent was not to be given. This is how the Senate was intended to work. The president can only nominate. The Constitution does not say the Senate can only deny its consent by holding an up-or-down vote or a hearing. Nothing says it must act at all on the nomination. This is decidedly clear from the historical record.

Presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations, the vast majority of them (25) received no up-or-down vote.

All numbers are pre-Garland, at about the time Kagan was nominated and received the consent of the Senate.

The 25 no-votes include 11 Presidential withdrawals and 14 withdrawals as the result of the end of Congressional session, when such matters get cleared from the Senate docket.

The historical record supports this interpretation of the Framers intent (same source):

The Framers expressly based the Constitution’s “advice and consent” model on the approach used in Massachusetts, under the State’s Constitution of 1780. And, looking through years of archived nomination files, I found myriad examples of nominations made by the governor that received no up-or-down vote from the “Privy Council,” the body that provided constitutional advice and consent.

But the best evidence of the Senate’s power not to vote on nominations is found in the Framers’ rejection of an alternative approach to appointments. As an alternative to the “advice and consent” model, James Madison proposed a discretionary Senate veto. Under that plan, a president’s nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.

In short, Madison would have put the burden on the Senate, to affirmatively act to block a nomination. But the Framers rejected his proposal, and chose instead the “advice and consent” model, placing the burden on the president (and his supporters) to convince the Senate to confirm his nominee.

What you proposed would certainly qualify as a high crime and misdemeanor and impeachable, and high treason as well. Ordering the military to force the Senate to hold a hearing indeed. Only the most lick-spittle and unpatriotic military or law enforcement personnel would carry out such a coup attempt, which is what you are advocating, and a more appropriate response would be to put whomever ordered such into immediate custody.

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    Of the 25 that received no up or down vote, how many of them didn't even receive a vote from the Judiciary Committee? And how many withdrew before any vote? – Azor Ahai Jul 11 at 15:20
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    @AzorAhai No I would say all 25 are. The most logical reason that the President withdraws is so they can appoint someone else knowing that the Senate isn't going to act. All 25 never received an up or down vote. Nor were they likely to. – K Dog Jul 11 at 16:45
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    So, what's your point... according to your figures, the overwhelming majority of nominations, 135 out of 160 (about 85.5%) were put to a vote, as they should be. I'm not saying they don't have the right to do it that way (withholding the vote). Just because you can do something, doesn't mean you should. – Kevin Fegan Jul 11 at 18:15
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    @KevinFegan When the Senate decides to not confirm, as they did in this case, this is the preferred method, to deny a vote. I don't know how I can be more clear. – K Dog Jul 11 at 18:18
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    Your conclusion that not voting at all is the most common way of rejecting a nomination is a direct consequence of your unsupported claim that all 11 candidates who were withdrawn were because the Senate would have refused to vote. What is evidence can you offer to support that assertion? If one supposes instead that they were withdrawn because the Senate would have voted "no", then the conclusion would be reversed, with 22 who were or would have been voted down and 14 who weren't voted on. In a withdrawal, the Senate doesn't refuse to vote: it loses the chance to vote. – David Richerby Jul 12 at 17:07

Each House in Congress can arrange its own affairs:

Each House may determine the Rules of its Proceedings ...

So "How" and "When" the Senate chooses to give or withhold its consent is a matter for the Senate to decide. In the case of Garland, the Senate did not consent to his appointment.

The President can't force the Senate to discuss a particular appointment at a particular time, so the President did not break his oath or contravene the constitution. Ordering the military to act in the way you suggest would be an illegal act. This is why Obama did not do it.

In practice, the Senate was saying "We've already made our mind up on who we will consent to, and Garland isn't on that list." So holding hearings etc. would not have actually resulted in Garland being appointed.

  • This is Stack Overflow so I am not trying to advance personal views, and whether I like it or not, has nothing to do with the question. I was just wondering why didn't Obama force them. I understand the "how and when", but "how and when will" does not include "will not". My question was not on the meaning of the Constitution, for that is to me clear. My question was why Obama didn't do what he swore to. I can't ask him that question, for he is too busy to answer me. – Mark Galeck Jul 11 at 7:56
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    I don't think you're getting it... Obama nominated an individual to the court. That was the full extent of his constitutional power in the situation. From your apparent perspective, you might call it a constitutional "duty" that he "swore" to perform, but you'd be wrong about that as well. I can't imagine why any would not do so, but by the language of the constitution a president is not even compelled to make a nomination. – zero Jul 11 at 17:59
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    @KevinFegan: You know the president can withdraw the nomination right? – Joshua Jul 12 at 16:34
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    The Senate most certainly wasn't saying "we've already made their mind up on who they will consent to and Garland isn't on that list". Garland wasn't even nominated when McConnell announced they wouldn't fill the vacancy until Obama was out of office. – De Novo Jul 12 at 22:27
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    @The next election cycle. Can they win? – Joshua Jul 16 at 17:33

The Senate did not "refuse to follow the constitution". They acted entirely within it.

The idea of the Senate not voting on judicial nominees already has precedent. During Bush 43's presidency, Democrats refused hearings on 11 judicial nominees for almost two whole years. When Republicans took control of Congress in the 2003 midterms, Democrats began filibustering Bush's nominees. In total, there were over 20 judicial nominees that were stalled for upwards of 6 years by Senate Democrats during his presidency.

The bottom line is that there is no provision in the Constitution that requires the Senate to even take up a vote on the matter. And the President has no power to force them to do so.

The consent part of "advice and consent" means that the Senate must vote on and approve presidential appointments to certain offices, but everybody always forgets the advice part. Advice means that the Senate will counsel the President on what candidates they would find acceptable. The Senate is within its rights to say "No candidate you nominate will be acceptable to us." That counts as advice.

The president can, in "extraordinary times" force the Senate to convene, but the Constitution does not specify what an extraordinary time is, and lack of one Supreme Court judge wouldn't qualify anyway. Even if the President did force the Senate to convene, he still couldn't force a vote; such a measure is only designed to fatigue the Senate into a compromise.

The idea behind the Advice and Consent power is that the government rules by the "consent of the governed", and Congress is more accountable to the people than the Executive is, and much more accountable than the Judiciary is (the Judiciary is not accountable to the people at all, except by impeachment and the Advice and Consent clause).

The Framers of the Constitution were not naive. They expected this kind of infighting to occur, which is why the system is designed the way that it is. If there were a very long period of impasse between the President and the Senate over appointees, either they or the President would eventually succumb to political pressures by the electorate to knock it off.

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    What support do you have for this statement: "The Senate is within its rights to say "No candidate you nominate will be acceptable to us." That counts as advice." – De Novo Jul 13 at 3:17
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    I don't think that follows directly at all (that the Senate can say "no candidate you nominate will be acceptable to us"). That's a rejection of the president's authority to nominate, not rejection of a nominee. – De Novo Jul 13 at 4:21
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    Those opinion pieces are about rejecting a nominee (by not putting it to a vote), not about a priori rejecting the power to nominate. – De Novo Jul 13 at 4:37
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    Both cases (rejecting a priori any nominee and rejecting a priori any treaty) represent a massive overreach of the Senate's power, to the harm of the executive branch. – De Novo Jul 13 at 5:03
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    The problem is, I don't see a remedy that, e.g., the courts could order. – De Novo Jul 13 at 5:08

I'm going to add an answer that doesn't exactly answer the question in full, but that hopefully clears up a bit of your misconceptions.

Clearly, it seems to me, the Senate refused to follow the Constitution with respect to Merrick Garland, a judge he nominated to a vacancy on the Supreme Court, and President Obama, swore to "defend and protect the Constitution".

It seems to you like the Senate is ignoring the constitution, that's fine, but YOU are not the final arbiter of law in the country. Neither is the president.

The Supreme Court is.

And the question as to whether or not the senate is following the constitution by ignoring the nomination of a justice has never been answered by the courts. It is an open question.

The constitution provides only one mechanism to answer any questions we may have about its interpretation, the court system. If a president unilaterally decides the answer to an open question about the constitution without getting an answer from the courts and uses police or military force to backup their interpretation, that's called a coup. The president wouldn't be "defend[ing] and protect[ing] the Constitution", they would be irrevocably violating it.

If on the other hand, the court DID rule against the Senate and the Senate STILL refused, the court itself would send law enforcement. Not the president. We saw something similar recently when a county clerk refused to sign the papers for gay marriages after the courts ruled she had to. She was held in contempt of court and arrested.

In short, while the president has a duty to defend the constitution to the best of his ability, the particular type of defense you are describing is not within the ability of a president. Not without ignoring the constitution. And it is pretty hard to defend the constitution by ignoring the constitution. It would be kinda like having sex to preserve celibacy.

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    "If … the court DID rule against the Senate..." is unconstitutional! Think of the weakness: suppose the next Napoleon Bonaparte comes in the form of a Supreme Court justice. He attempts to control the government from one branch (the judicial). What could stop him? Checks and balances! That's why it makes more sense that the Senate makes its own rules that are, as @zibadawa_timmy put it, "not subject to overview by the judicial branch" as the Supreme Court has held itself in the past (en.wikipedia.org/wiki/United_States_v._Ballin). – elliot svensson Jul 14 at 3:11
  • @elliotsvensson: Indeed! Impeach and remove. If he won't vacate, the senate has a Sergent-at-arms. – Joshua Jul 16 at 18:00
  • @elliotsvensson Well, the first thing that stops him is that Justices can only rule on cases that come before them. This vastly limits what a justice can achieve. The SC justices, while acting as justices, cannot usurp power. Period. If they are usurping power by other means, ie simply giving orders to police and the military, that's open rebellion or a coup. Asking what the constitution says about that is a very moot point. – Shane Jul 16 at 21:04
  • @elliotsvensson Secondly, while the ability of the Senate to disband the Supreme Court is still an open question, the ability to expand the court is well decided. If somehow there is only a single justice on the court and they are trying to somehow take over, you add more justices to the SC. Not much of a problem there, actually. You speak of check and balances, and how the congress can balance against over reaches by the other branches. But don't forget it works the other way as well. The court has to balance against the other branches also. – Shane Jul 16 at 21:07
  • @elliotsvensson As I mentioned in another comment: If the Senate has the ability to never consent to any justice, they have the ability to abolish the Supreme Court. If the constitution grants congress the ability to abolish one of the branches of government, there are no checks and balances. If the constitution does not grant the ability for congress to abolish the supreme court, the ability to reject supreme court appointments must be limited in some fashion. – Shane Jul 16 at 21:11

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