John Yoo On Filling The Supreme Court Vacancy

BY Herschel Smith
5 years, 9 months ago


Republican senators and the presidential candidates should reject the claim that they have an obligation to fill Justice Scalia’s vacancy before the election. Senator Harry Reid, for example, declared that “it would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat.” He continued: “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.” Senator Charles Grassley, chairman of the Senate Judiciary Committee, responded that the next president should fill the vacancy.

We should recognize first the Senate has no constitutional obligation to fill any vacancies on the courts or in the executive branch. Article II of the Constitution gives the president the power to appoint justices, but only with “the advice and consent” of the Senate. It does not require that the Senate give the president’s nomination approval, or a rejection, any more than it requires the Senate to quickly give its advice and consent to a treaty negotiated by the president. President Obama can nominate anyone he likes, or he can leave it to the results of the November election. The Senate can confirm, reject, or just sit on the nominee, just as it can with any other proposal from the executive branch. Its right to delay or reject nominees is an important weapon in the constant struggle for advantage between the executive and the legislative branches.

Some may suggest that the Court needs nine members to function properly. This argument is simply untrue. Unlike the presidency, the Supreme Court is a collegial body. It can do its job with eight members; at the beginning of the Republic, it operated with six. The Constitution itself requires only that the Court have a chief justice and reserves to Congress the choice over its size. The Court has virtually complete control over its docket, and if it were truly feeling burdened by too much work, it could just hear fewer cases. Although the justices are taking more-controversial cases than ever, they are also taking many fewer cases than they did 30 or 40 years ago.

I couldn’t care less if the Supreme Court didn’t have any justices whatsoever.  If this senate moves to approve Obama’s nominee, it will be the end of the republican party forever.  There will be nothing left.  No, I’m not saying that it should be the right kind of nominee who is agreed upon by all of the respectable senators like the little worm Lindsey Graham.

I’m saying I and the rest of conservative and libertarian America doesn’t want this senate to do anything with any nominee.  We don’t trust you because you aren’t trustworthy.  We don’t want this decision in your hands.  Stay in session for enough days to block any “recess appointment” Obama might want to make, work the system to block Obama and his minions, and wait until this must be done under a new president.

Oh, there is no end to the sky-is-falling commentators.  Ruth Marcus writes this.

Refusing to go forward would serve to deepen and entrench the existing partisanship and ensuing gridlock.

Finally, a Senate work stoppage would, in fact, be bad for Republicans. In the nation’s capital these days, everything is political, every institution politicized. That may be inevitable and irreparable, yet tables here have a way of turning. One party’s obstructionism ends up hurting it down the road.

[ … ]

Running out of time is not a credible claim.

Listen to the Republicans, in the Senate or on the campaign trail, arguing for inaction. Their claims proceed from the position of raw power, not constitutional language.

Ooo … the constitution … gridlock … a divided America … bad for republicans!  Perhaps even losing control of the senate!  Boo!  Hold me uncle Bob.  I’m askeerd!  Boo!  Cue eerie, creepy music.  Boo!

It’s not hard to see the likes of Mitch McConnell running scared and screaming like a little girl.  Lindsey Graham too.  But the rest of you had better hold firm.  And remember.  Our remedies are seldom used, but we do have them.  There is always hemp rope and light posts, or if you prefer, tar and feathers.  And don’t ever forget that gun ownership isn’t about hunting, self defense, or “sporting purposes.”  It’s about the people having a surety against tyranny.

Prior (for the influence of C.S. Lewis on Antonin Scalia): Remembering Antonin Scalia

See also David French on filling the vacancy, Elizabeth Price Foley, and especially Steven Calabresi, Scalia Towered Over John Marshall.


  1. On February 16, 2016 at 6:34 am, 191145 said:

    We knew that this election was going to be so very important for the makeup of the supreme court . Now everyone in the country knows it . Obama will do his best to get a nominee confirmed that he knows will overturn Heller, this is a fact, and this election has been all about the 2 Amendment . Obama sees a chance to get total gun control and legalize confiscation through 1 judicial appointment . If this happens there will not be a loud enough ” I TOLD YOU SO ” let out when you will have to register all electronic communication and pay a yearly fee to do it . Just like a drivers license or registering a car . Democrats should be very cautious about just who takes Scalia’s place . The whole constitution and our republic has just been, or is about to be put on the chopping block . It can’t happen here, is what I’ve heard for 30 years, well, that is exactly where we are at . IMHO .

  2. On February 16, 2016 at 10:17 am, Fred said:

    “We don’t trust you because you aren’t trustworthy.”


  3. On February 16, 2016 at 12:21 pm, Frank_in_Spokane said:

    I’m sure that there are good arguments for the Senate to decline approval of any Obama nominee to fill the vacant Supreme Court seat.

    But in light of their support for George Bush’s illegal torture policy and invasion of Iraq, neither John Yoo nor the National Review are the ones to be making them.

  4. On February 16, 2016 at 2:50 pm, Herschel Smith said:

    ” … in light of their support for George Bush’s illegal invasion of Iraq and torture policy, neither the National Review nor John Yoo are the ones to be making them.”

    I don’t see why not. Disagreement with one or more of their positions (and I’ve had my own) doesn’t go to the validity or lack thereof with this one. You should bifurcate categories here. Yoo’s position on this is either right or wrong on the merits. I happen to think it’s right, so I used it for my own article.

  5. On February 16, 2016 at 6:16 pm, Frank_in_Spokane said:

    As is your prerogative. I simply find it highly ironic (if not downright nauseating) for Yoo to be making legal arguments using phrases like “shameful abdication of constitutional responsibilities.”

  6. On February 16, 2016 at 6:26 pm, Herschel Smith said:

    I understand, but he’s quoting Harry Reid there.

  7. On February 16, 2016 at 8:43 pm, Frank_in_Spokane said:


    Sorry, I guess I’m just blinded by my deep hatred for Bushie neocon enablers. :-(

  8. On February 16, 2016 at 2:43 pm, Mark Matis said:

    The Senate does not need to vote on any nominee in order to let the Muslim in Chief have his way. They only need to recess, at which time he can make a recess appointment. That lets him get his way on every case the court hears through the end of his term. Including the one which decides that Cruz is not a “natural born citizen” if he ends up on the GOP ticket in either spot. The GOP then gets to use that as a campaign funding issue, which is all they are really after anyway.

  9. On February 16, 2016 at 2:47 pm, Herschel Smith said:

    Read this link:

    The senate can “stay in session” by a perfunctory application of the gavel every two days. The rules are in place to allow them to do that.

  10. On February 16, 2016 at 3:05 pm, Jack Crabb said:

    If – and its a BIG if – McConnell has the balls to do it.

  11. On February 16, 2016 at 3:11 pm, Herschel Smith said:

    Like I said. I can see McConnell running like a little girl away from all the scary stuff.

  12. On February 16, 2016 at 3:30 pm, Mark Matis said:

    And that was my point. Along with the fact that the Rove Republicans would LOVE to have Obama make a recess appointment so that they could use it to fund-raise in the current election cycle. They have no morals, no scruples, no principles, and no honor. Nothing more than the other end of the same steaming turd as the Democrats.

  13. On February 16, 2016 at 3:51 pm, Herschel Smith said:

    Oh. I see your point. Go ahead and allow the communist to make an appt., and then use that as bait for donations to the next pres campaign.
    Good Lord! I cannot even think that way. I guess I could never be a politician. That’s not running scared. That’s malfeasance.

  14. On February 16, 2016 at 6:19 pm, Mark Matis said:

    That is the Rove Republicans.

    Think Matthew 7:16.

  15. On February 17, 2016 at 11:58 am, Archer said:

    Another question/point of view:

    Where is “session” defined? As in, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” (US Constitution, Art. II, Sec. 2)

    Is a “session” the period of business between recesses? Or does it follow the election cycle, every two years?

    Here’s where I’m going: Is it possible for the Senate, in the event of a recess appointment before Feb. 22, to convene at noon and (with the consent of the House) declare themselves to be “in recess” at 1PM (thus ending the “session”, and the recess appointment) for a late lunch, and re-convene at 1:30PM for a new “session”?

    SCOTUS precedent says, basically, that the Senate is in recess or in session when it says it is. Where, then, is the demarcation between one “Session” and the next, for Art. II Sec. 2 purposes?

  16. On February 16, 2016 at 7:44 pm, Backwoods Engineer said:

    Only 2 or 3 months ago, I still clung to the belief that America might pull out of the death spiral she has been in for decades. With Scalia’s death, and the inevitable Obama replacement, I no longer hold to that particular illusion. I only pray I have the courage to die with my gun in my hands.

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This article is filed under the category(s) Politics and was published February 15th, 2016 by Herschel Smith.

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