Can a sitting POTUS appoint themselves to the SCOTUS??

[Amimnoch]

From a Christmas dinner discussion yesterday. Brother-in-law proposed that Cheeto may attempt that if he does get voted out next November.

[lark]

1. No.

Senate would have to ratify and that wouldn't happen.

[tblue37]

2. If he did, the GOP Senate would try to confirm him. nt

[onenote]

20. Not a chance

Apart from it being ridiculous and politically stupid (what would be in it for elected Republicans if Trump just was defeated), there is no way Republicans would fill a vacant Supreme Court seat with a 74 year old.

[not_the_one]

65. The first democratic appointee to the US Supreme Court should be Hillary Rodham Clinton

IF we can take back the senate.

I can sit back and watch the meltdown...

[onenote]

66. Also a dumb idea.

I'm sure she has no interest and it would be a remarkably dumb idea to nominate someone in their 70s.

[Blue_true]

53. If we got a democratic President in the bargain, let them.

If he replaces a Thomas or a Alito, we lose nothing. Roberts likely would quickly grow to hate the asshole so much that he will vote with the liberals. Plus, I really don't think that Trump is long for this earth, him taking a conservative seat would mean that our democratic President gets to replace him in a couple of years.

[pwb]

3. A sitting president no, A standing president could.

Even the pukes like smart judges so I would say trump fails the basic requirements to get confirmed..

[StarfishSaver]

4. Many of the judges confirmed this year aren't anything close to being smart

[pwb]

6. They do have Law degrees.

And pass a written bar exam so they can read and speak in full sentences is what i meant. Trump fails there.

[CincyDem]

7. Interestingly, they do not need any professional degree or education according to the constitution.

Re: POTUS and SCOTUS, Taft was the only person to serve on both. Appointed as Chief Justice about 10 years after he left office.

[Amishman]

11. Most of them are smart and knowledgeable, they just have anachronistic principles

There are a few lacking in actual on paper credentials, but most have appropriate education and experience. Just look at how many Thomas and Scalia clerks are finding prominent positions.

The real problem is their moral compass is easily 100 years out of date. Extreme social conservative throwbacks, their opinions are straight out of bizarro world even though they have the knowledge to do the right thing.

IMO this is far worse than if they were unqualified / ignorant. It is easy to write all of the far right off as idiots, but that is mistake. They identify with a culture that is separate and incompatible with the emerging modern world.

[StarfishSaver]

12. No. Some of them are really dumb, with no experience or understanding of the law

Nine of Trump's nominees have been rated "not qualified" by the American Bar Association. Among other things, the ABA has cited nominees' lack of experience - for example, some have never tried a case or been in a courtroom.

Only 21 nominees since 1989 have been rated not qualified - nearly half of those were people Trump nominated in just the last 15 months.

It's not just a philosophical problem. He's appointing people who have absolutely no business being judges.

[Amishman]

14. Nine of well over a hundred

As I said in my earlier post, there are a few like this but they are the exception. Almost all of them are awful by choice, not out of ignorance.

[StarfishSaver]

15. Nine utterly unqualified judges is nine too many

As I said, only 21 judges have been rated unqualified in the past 30 years. Nine of those have been appointed by Trump in just the last 15 months - 10%nif his judicial appointments. They're not "exceptions." They will be on the bench for life and have tremendous influence over people's lives.

I don't know why you're trying to downplay that as no big deal. It is a BFD.

[Amishman]

16. I'm focused on the real problem

A few unqualified idiots in positions of power is far less dangerous than a large number intelligent malicious individuals in the same. We would be fortunate if he appointed more incompetents to prominent positions, because that is better than the types he is mostly appointing.

You might find it comforting to discount Trump's appointees as fools who are in over their head, but the reality is much much worse. And there is no easy fix. This is one symptom of an irreconcilable cultural divide that is splitting this country. Others as well, as the Brexit debacle and other schisms in Europe can attest.

[StarfishSaver]

18. They are ALL "real problems." You focus on your priorities. I focus on mine.

Thes more than enough to go around.

[Atticus]

5. "Even the pukes like smart judges---" That's just not true. They like obedient judges. nt

[Joe941]

8. They like smart judges? Uhmm no they dont.

[Maru Kitteh]

10. HA HA! no.

The only basic "requirement" for confirmation to the supreme court is, well, confirmation. It would be a purely political (cost vs. benefit) calculation on the part of the senate, nothing more.

[Recursion]

22. A sitting President yes

None of the Constitutional restrictions forbid a sitting officer of the executive branch from being on SCOTUS.

[NYC Liberal]

9. Yes but he would have to resign to take the position.

[Recursion]

24. Nope

The Constitution prevents someone from serving in the legislative and executive branches simultaneously, but there is no restriction against being an Executive branch officer and a Judicial branch officer simultaneously.

[bluestarone]

13. You know what

THIS is a very scary thought!! This group of senators WOULD do it!

[onenote]

23. No they wouldn't. See post 20

[rsdsharp]

17. There is one other element to this scenario that hasn't been addressed.

There would first have to be a vacancy on the Court. Either the number of justices would have to be increased from nine (possible, but it didn't work out well when FDR tried it), or a justice would have to die or retire to make way for Trump. I doubt any of the current justices would willingly embrace either option.

[onenote]

19. Brother in law may have had a bit too much egg nog?

First of all, what vacancy would Trump be filling?
Second, while just because some things that Trump has done would have been unimaginable doesn't make anything and everything unimaginable.
Third, the Senate wouldn't confirm him: he'll be 74 years old and if a Democrat has been elected, Republicans aren't going to support giving a vacant Supreme Court seat to someone Trump's age.
Fourth, hard to imagine that this would be a serious topic of discussion when there are so many real issues to discuss.

[hughee99]

25. There is no actual rule that requires a vacancy.

In any case, though, he wouldn’t get confirmed even by a republican senate. I think the days of anyone getting confirmed to the SC without a significant judicial background are long since over.

[onenote]

28. Huh?

The number of Supreme Court Justices is set by statute at 9. So the only way to appoint someone to the Court without a vacancy would be to increase the number of Justices. The Republicans wouldn't be able to overcome a filibuster to do that unless they were willing to get rid of the filibuster rule. Plus, and this is most important, adding another seat to the Supreme Court to appoint an unpopular 74 year old is something that even the stupidest Republican would recognize as a bad idea.

[hughee99]

31. It's set by the Judiciary Act of 1869, though there does not seem to be

Anything in the constitution that grants congress this authority. Certainly, the senate doesn’t have to confirm anyone, but I think if some president were to challenge for the authority to nominate a 10th justice, they’d stand a decent chance of winning (only to see that nomination fail).

Given that the Senate still has the authority to confirm justices or not, they’d have the ability to keep the court at whatever size they wanted with or without the constitutional authority to pre-determine the court size.

[onenote]

36. I'm quite confident the Supreme Court would not find in favor of a president unilaterally increasing

the size of the Court.

While the Constitution does not expressly state that the size of the Court should be established by Congress, I am confident that the Court would find that such authority is implicitly granted to Congress and falls within Congress' authority under the Necessary and Proper clause.

Among the arguments that undoubtedly would carry much weight with the Court would be that although George Washington, who was one of those signing the Constitution, became President in April 1789, he made no attempt to nominate anyone to serve on the Supreme Court and did not veto the Judiciary Act of 1789 (enacted in September 1789). The Court also would be influenced by the fact that those presidents that supported increasing the size of the Court, from Jefferson (who was not a signatory to the Constitution but is considered a founding father nonetheless) to FDR deferred to Congress to do so through legislation.

[hughee99]

47. Since all nominees would need to get senate approval anyway

Congress could effectively limit the size of the court, even without the expressed authority to do so.

I don’t believe the SC would tell a president he’s not allowed to submit a name, but they certainly wouldn’t tell the Senate they’re under any obligation to seat someone else.

While precedent does exist from FDR for going through congress to increase the court size, I’m not sure that’s the only possible route. In the end, though, if you can’t get congress on your side for this rule change, you’re likely not going to have success adding justices either, so the scenario I suggested is still a dead end for a president looking to add justices.

I think a more interesting test would be if a SC justice were in a permanently incapacitated state, incapable of doing the job and not capable of resigning either. I’m not sure there’s a way to remove a justice without their consent other than impeachment, and I’m not sure they’d go through the impeachment process for a judge whose only “crime” was not being physically or mentally able to do the job.

[onenote]

48. Precedent predates FDR

The Court was increased from 6 to 7 in 1807 while Jefferson was President. And there was no Supreme Court at all from April 1789 until late September 1789, when Washington nominated, and Congress confirmed, six Justices as authorized by the Judiciary Act of 1789.

And the situation of a justice being incapacitated and unable to do the job and unwilling or unable to resign has occurred. Justice Henry Baldwin served on the Court until his death nearly a decade after being hospitalized for "incurable lunacy." And Justice Ward Hunt served for three years after suffering a stroke and becoming so incapacitated that he could not attend court or write opinions.

The Court doesn't stop functioning when it has a vacancy, whether actual or practical.

[hughee99]

51. Let's say 2 years from now, Clarence Thomas gets incapacitated,

Do you think a Dem president would just pass up the opportunity to try to replace him? People here would be screaming for his replacement, 150 year old precedent be damned.

[onenote]

52. Yes, people here would be screaming for his replacement. And a Dem. president would not replace him

if he hadn't resigned or died, creating a vacancy.

People here "scream" for a lot of things that don't happen.

[hughee99]

54. If we had the Senate, I don't think there's any way a Dem President

Would refrain from nominating a replacement, and if we didn’t have the house, I think it would play out exactly as I described.

If we had both the house and senate, they’d probably go the way FDR tried. If we had neither the house or the Senate, you might be right.

[onenote]

55. And I think there is every way a Democratic president would refrain

from claiming the right to nominate someone to fill a non-existent vacancy in the Supreme Court and that a Senate controlled by the Democrats would inform him that they wouldn't confirm any such attempted nomination. And I have no doubt if the Senate went along, that the current Supreme Court would strike down any attempt to appoint a 10th SCOTUS justice when Congress has authorized nine.

[hughee99]

56. I don't believe that for a second.

I believe if the constitution doesn’t clearly state something, there will be a push in the Democratic Party to do what works best for us politically, and when what’s at stake is the ability to appoint a Supreme Court justice, there’s no way they’ll resist that push.

[onenote]

57. So why aren't Trump and the Republicans naming more Supreme Court Justices?

[hughee99]

58. They've floated the idea already.

It is a hassle though, and they think that they may get an actual vacancy soon enough.

[onenote]

59. Why is it a hassle?

If all that it takes is Trump unilaterally naming someone (or five) and the Republican Senate confirming them, it could be taken care of in a jiffy.

I'd be interested in seeing a link where the Republicans have "floated" the idea of unilaterally (without passing new legislation) expanding the size of the Court.

[hughee99]

60. You actually read what I wrote, right?

The president submits a name, congress challenges it based on the 1869 law, it has to go to the SC where the SC then would have to rule that congress does not have the authority to predetermine the number of SC justices. If he loses, it’s done, and if he wins, he now has to get through confirmation after just pissing off some of the people in congress whose help he’ll need.

The idea of expanding the court (not necessarily through the process I suggested) was floated already from both sides to the extent that Trump commented on it earlier this year and rejected the idea.
https://www.google.com/amp/s/mobile.reuters.com/article/amp/idUSKCN1R02E9

The idea has been much more popular among Dems than republicans, though, with an eye toward winning next year.

[onenote]

61. That doesn't explain why the Republicans aren't trying this idea

Why wouldn't the Republican Senate go along with a Republican president? And if the Democrats in the Senate went to Court to challenge the nomination and confirmation of a tenth (or 11th, 12th, etc) justice, why wouldn't the Republicans be more confident of success if the case came up now (with a Republican majority Court) than the Democrats would be if they tried it and it was subject to review by the current Republican majority Court?

And nothing in the article you linked suggests that anyone has proposed increasing the court size without going the route of passing legislation to do so (i.e., the FDR approach).

[hughee99]

62. The link explains that Trump doesn't want to expand the court.

The republicans are going along with Trump to now oppose expanding the court.

Several Dems (pundits and candidates) have suggested they are open to expanding the court, though haven’t given strategies on how they would go about it (at least the candidates haven’t, that im aware of). My suggestion is one possible route to that end, though as I said earlier, it’s probably a dead end. The only way it makes any sense to even try it is if you have the White House and the senate, but not the house. The republicans currently have that situation but have decided not to do it. If we find ourselves in that situation, I’m not sure we’d pass up this possibility.

[onenote]

63. He doesn't want to expand the court because it would require legislation that would be filibustered

There is no reason for him not to want to expand the court if he could do so unilaterally. But no one is telling him that he can challenge the Judiciary Act setting the number of justices because no one thinks that case is a winner...even with a Republican majority court.

[hughee99]

64. As I said, even if you win that case, you'd still have to go through

The senate for confirmation and have the same problem, with the addition of possibly pissing off some republicans for challenging congressional authority.

And you keep saying “unilateral” but he still has to go through the senate to get any nominee seated.

[Recursion]

21. Yes

The Constitution prevents anyone from serving in both the legislative and executive branches, but nothing prevents an executive-judicial crossover.

Back in 2016 there were some jokes about Obama appointing himself to the Supreme Court based on this.

[Hearthrob]

38. Where is the "co-equal" part of this?

Congress should be able to overrule both SCOTUS and POTUS ( with the potential of an eternal triangle).
Unchecked and unbalanced!

[onenote]

45. Puh-leeze

Study up before you post. You'll be less embarrassing to yourself.

Congress can "overrule" the President and, in many instances, the SCOTUS. POTUS can be overruled by passing a law reversing what POTUS has done and/or overriding POTUS veto. Congress also can re-write laws that are held unconstitutional to overcome Constitutional infirmities or can pass a Constitutional amendment and send it to the states.

[Hearthrob]

49. So sorry, but my plan is limited. Thank you for the

[no_hypocrisy]

26. William Howard Taft wanted to be a SCOTUS more than President.

He didn't nominate himself.

But then again, Trump isn't "normal," is he?

[Retrograde]

33. And Taft had judicial experience

Federal Appeals Court iirc.

[The Velveteen Ocelot]

27. He'd have to be confirmed by the Senate,

and I don't think even the GOPers would go that far. He'd be out of office as president so they wouldn't be afraid of his tweets any more.

[onenote]

29. +1 (and the fact that he'd be 74)

[MineralMan]

30. Not a job Trump would want, but no, I think.

[dalton99a]

32. Oral arguments would be phenomenal.

Decisions would be beautiful and perfect

[StarfishSaver]

35. Attorneys would never get to talk.

Chief Justice: The Case of Jarndyce v. Jarndyce. Each side will have 15 minutes for argument. Counsel, you may begin.

Counsel for Petitioner: May it please the cour ---

Justice Trump: I used to be president, you know so I'm very smart, even though I didn't go to law school, but I would have been first in my class. I WAS first in the law school class even though I didn't go. You look like you didn't vote for me. I'll bet you didn't vote for me. Lots of people voted for me. Obama never was a judge. Neither was Hillary blah blah blah blah

Chief Justice: Your time's expired.

[dalton99a]

39. Justice Trump: "Be quiet. Ssh! Be quiet! I am not finished!"

[StarfishSaver]

43. "Gettim outta here!"

[duforsure]

34. He could try to install a family member

His sister, ivankie, or Barr , or a FOX news pal.

[onenote]

37. He could try to "install" a hedgehog or a pony

but he won't succeed. And he wouldn't succeed in appointing his sister, ivanka, barr, or a Fox newsie.
For one thing, Barr will be 70 and his sister is in her 80s. And there is no reason for the Senate, following a Trump electoral defeat, to kowtow to him and confirm Ivanka or Tiffany or Hannity or any of the other nonsensical suggestions being tossed around in this thread.

[Hearthrob]

40. He's much more dangerous out of office.

Whatever he's using to blackmail his slimey klan with will still be effective. Add to it that he knows the secrets of foreign governments and how to get at their weak spots. His support lncludes even more evil geniuses that can keep him just under the law.
Our enemies can make him the richest man on the planet-with endless places to hide.

[pwb]

41. I don't see it that way.

He is all talk and no danger to any man. Where is this genius support staff? They are idiots. Fake tough all of them.

[onenote]

44. "evil geniuses"? You're kidding, right?

[marlakay]

42. Even if he could he would have to work

He is too lazy to do anything.

He doesn’t even want this job only reason he is trying for it again is he doesn’t want to be a loser, he wants to win.

[smirkymonkey]

46. Pardon my ignorance, but wouldn't one need a law degree at the very least to serve as a

Supreme Court Justice? I would think that some expertise in the legal field would be required and he has NONE. Even though he would claim that he knows more than all the SC Justices combined, there is the fact that the only legal experience he has is suing people and being sued.

He has never been to law school, has never passed the bar and has never actually practiced law.

[onenote]

50. As a matter of law, it's not required. But as a practical matter, it is.

Every person that has served or is serving on the Supreme Court has either attended law school, took law classes, was admitted to the bar, or practiced law.