8/15/2023 0 Comments Lame duck president and supreme![]() ![]() ![]() It is often said that the Constitution was designed to prevent concentrations of power in one branch of government, limit the ability of one branch to govern without the others, and avoid decisive government action unless there is a strong political consensus. For all of the rest (and even for Jackson, Taft, FDR, and Eisenhower for most of their years in office), the life tenure of Supreme Court justices means that the president and Senate could be supported or undermined by a court dominated by judges appointed by their predecessors. George Washington nominated all of the justices who served during his presidency Presidents Jackson, Taft, and Eisenhower each appointed five or six justices to the court FDR appointed nine. The Senate’s power to grant or withhold its consent, of course, is just one aspect of the Constitution’s system of checks and balances.Īnother part of that system, however, has been missing in much of the discussion about the current situation: the Constitution is designed so that in general the president and Senate can be checked by a Supreme Court dominated by their predecessors’ appointees. Meanwhile, Gary Wills has observed that the authors of the Constitution never intended the public to have a direct say in the selection of Supreme Court justices they wanted the president to nominate and the Senate to consent (or not). Timothy Huebner and Paul Finkelman have made helpful contributions to this discussion. Much of the recent debate about whether there is a history of “lame duck” presidential appointments to the Supreme Court has been political. The Supreme Court vacancy is not just a constitutional matter it is also political. “The Supreme Court vacancy is not just a constitutional matter it is also political.” Wikimedia Commons ![]()
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