If Congress pledged outright to block the nomination of any new Justice, (which I believe they already have), can someone hit Congress with a lawsuit (which could ultimately reach the Supreme Court)?

Supposing that congress could block a nomination for as long as they want, are there any other methods, (besides recess appointments and constitutional amendments), that would stop this kind of gridlock?

  • 3
    What, exactly, would the lawsuit be seeking? Would the courts just be ordering Congress to give an up-or-down vote (for which they would likely vote "no"), or would it require Congress to seriously consider approving someone?
    – cpast
    Commented Feb 15, 2016 at 22:19
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    Well where does it state in the Constitution that they have to act within some kind of timetable?
    – Andy
    Commented Mar 3, 2016 at 2:28
  • 2
    They haven't blocked the nomination; they've withheld their consent. Commented Oct 5, 2016 at 19:04
  • 2
    Oh, if you wanted to stop the gridlock, the President could nominate a non-partisan.
    – user9790
    Commented Nov 2, 2016 at 19:20
  • 5
    @KDog - From what I remember reading at the time, Garland is as close to non-partisan as you could find these days: A highly regarded and broadly respected moderate. I haven't exactly examined his judicial record myself, though.
    – Bobson
    Commented Nov 3, 2016 at 5:03

3 Answers 3


No. The courts certainly couldn't allow the President to appoint someone without the advice and consent of the Senate. The Constitution explicitly requires it. Federal courts have no power to say "eh, the Constitution isn't working out well, so let's ignore it and allow something that removes an essential check on the President."

The Obama administration tried arguing in NLRB v. Canning that recess appointments, which the Constitution does allow, could be made when the Senate was in a pro forma session (where the only business expected to be done is to adjourn for three days; these sessions typically last under 60 seconds). The administration argued that these sessions are under the understanding that no work will be done, and certainly nothing controversial, so they could use the recess appointment power to deal with the reality that the Senate wasn't able to deal with nominations. But the Supreme Court found 9-0 that the Constitution sets out the rules for the appointment of an officer of the United States, and that Congressional unwillingness to deal with the nomination didn't mean the President could go ahead without the advice and consent of the Senate (for that to happen, the Senate would have to be in a state where under its own rules it was incapable of dealing with the nomination, while in pro forma sessions it could confirm by unanimous consent).

So, "we'll ignore the Constitution" isn't an option. The slightly more interesting question is whether the courts could force a final vote on a nominee. This has been litigated before in the context of filibusters, where it was found that the courts couldn't ban filibusters. Congress, as a coequal branch of the US government, isn't generally subject to being ordered around by the courts when discharging legislative responsibilities. If the courts really wanted, they might be able to find some theory to intervene; however, courts generally don't like getting involved in this, and have all sorts of ways to avoid it.

  • 1
    I'm sure the courts would be even more reluctant than usual because it would be about appointments to courts.
    – Bobson
    Commented Feb 16, 2016 at 18:42
  • The answer should be "Yes you can. But no you will not win and are liable to be sanctioned for an abuse of process." Commented Nov 2, 2016 at 19:55
  • The Constitution explicitly requires it. Federal courts have no power to say "eh, the Constitution isn't working out well, so let's ignore it and allow something that removes an essential check on the President." - Roe v wade, Bush v Gore, National Federation of Independent Business v. Sebelius say otherwise Commented Nov 2, 2016 at 20:25

It's a great question, one deserving of more coverage and discussion.

Let's break down the two questions into their component pars.

1a. Can Congress be sued? Likely, yes. Of course specific members may be sued and/or tried under impeachment.

1b. Can Congress be sued for blocking any nomination? Possibly yes.

The president has sole power to nominate, and with advice and consent of the Senate, to appoint Supreme Court justices. The actual wording: "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."

To put a little flesh on this - and to get closer to the question of whether the Senate HAS to act - we can look at what our Founders had to say about it. They thought this a relatively straightforward matter. Here are the words of James Iredell, on of the first Supreme Court justices (appointed by Washington), during a debate in his native North Carolina on adoption of the Constitution: ""As to offices, the Senate has no other influence but a restraint on improper appointments. The President proposes such a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate."

Washington himself wrote (in accordance with Jefferson and John Jay) that Senate powers "extend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution."

And Hamilton argued nominees should be rejected only for "strong and special reasons."

Also relevant to this question is the Oath of Office taken by senators:

"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

The Constitution states: "Senators...shall be bound by Oath or Affirmation, to support this Constitution..."

The case could therefore be made that senators have deliberately evaded a sworn, constitutional duty to consider - in good faith - Supreme Court nominees. The case at least can be made.

1c. Could such a case reach the Supreme Court? Unlikely, no. In theory the Supreme Court could hear such a case, but in general the court views these as political cases - to be decided by voters who may or may not decide to vote the senators out of office. But then again we have been surprised before in recent years when the Supreme Court had the option of referring a political case to the House of Representatives but instead did not (Bush v. Gore, 2000).

2. Are there other angles to get around this deadlock? No. No constitutional ones. Nothing prevents Democrats from pulling the same dirty trick when the shoe is on the other foot, and who is to say it couldn't go on for four years. At that point - or in the event of continued blocking by a Republican Senate - we may either see the Supreme Court simply become smaller and smaller over time as sitting justices step down or die, or, at some point, this slow burn constitutional crisis will boil over. A nice resolution would be something along the lines of an amendment (hah! fat chance!) stating the Senate shall advise President of nominees in timely fashion, and so on, with time limits for high level appointments.

  • 1
    This is poorly and illogically argued and has no links to verify the quotes. Their is nothing in the Constitution that requires the Senators to have a vote. In fact the majority on Supreme Court Justices that have not been confirmed have been done so through a no vote.
    – user9790
    Commented Nov 2, 2016 at 19:11
  • And there is no impeachment mechanism for members of Congress.
    – user9790
    Commented Nov 2, 2016 at 19:28
  • 1
    @KDog There is expulsion, but if you have two-thirds of Senators willing to expel anyone who refuses to have a vote, you have enough Senators to just go ahead with the vote.
    – cpast
    Commented Nov 2, 2016 at 21:24
  • @K Dog - why is this illogically argued? The Senate is preventing the president from fulfilling his constitutional duty to appoint a SCOTUS justice by refusing to consider his nominee. The "advice" given by McConnell in February 2015 is that the Senate would not consider any nominee put forth by Obama. Several Senators (Cruz, McCain, and others) are proposing that this practice continue into a Clinton presidency. The case could be made that the president has standing for a suit.
    – jalynn2
    Commented Nov 3, 2016 at 15:10
  • 1
    I'm not sure why this answer thinks it's obvious individual Senators could be sued for not acting on a nomination. The Constitution says that Members fo Congress cannot be punished in any way for their legislative actions, nor even be forced to explain them, except by their own chamber.
    – cpast
    Commented Nov 3, 2016 at 21:25

Nothing in the Constitution says the Senate must consent. Nothing says the Senate cannot withhold consent for partisan political reasons. Nothing says the Senate can only deny its consent by holding an up-or-down vote. Nothing says it must act at all on the nomination.

Nor does history aid the Democrats’ attempt to find an obligation to act. Adam White Weekly Standard has examined the debates over the framing and ratification of the Constitution. He found “no indication of any expectation that the Senate would be required the vote on a President’s nominees.”

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 about Senate practice when it comes to dealing with Supreme Court nominees?

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.

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