Constitution demands president nominate a justice, but congress has power to change number on court

Jeffrey Engel of SMU's Center for Presidential History says a president cannot sidestep a constitutional responsibility.

Jeffrey A Engel

DALLAS (SMU) – Jeffrey Engel, director of the Center for Presidential History at SMU, says just as the Senate has the right to block President Obama’s nominee to replace the late Antonin Scalia, Congress has the right to alter the number of sitting justices. 

But a presidential decision to sidestep constitutional responsibility to nominate a candidate for a vacant Supreme Court seat should be grounds for impeachment, Engel says.


“The constitution is very clear: It provides the President authority to nominate candidates for open seats, with no deadline for when this power expires within his term of office.  The Senate assesses the nominee, and the entire legislature has the right to determine the court’s overall size,” Engel said, adding that the number of Supreme Court justices has varied over time.

“The original 1789 Judiciary Act established a Supreme Court with one chief justice and five associate justices.  A seventh judge was added in 1807, and an eighth and ninth in 1837.  They even reduced its size after the Civil War, though it returned to its present size by 1869, surviving even Franklin D. Roosevelt’s attempt to ‘pack’ the court to ease judicial opposition to his New Deal legislation. 

“But not one of President Obama’s predecessors ever ceased being president until the moment his successor took office.  Not one – even when voters elected to the oval office someone intent on undoing the predecessor’s work.  Each remained president, in all capacities and with all its responsibilities large and small, until the moment another took his place.  Reagan tried to hand over his nuclear keys hours before his successor’s inauguration, and was told firmly, 'No.'  The Constitution is clear on his point - crystal.

“President Obama should, indeed must, exercise his constitutional authority to nominate someone to fill the Supreme Court’s suddenly vacant slot.  Failure should be grounds for impeachment,” Engel said.

“The president’s political opponents in the Senate may choose to stymie and delay a vote until another occupies the Oval Office in 2017.  That is their privilege under our constitution.  But to say a duly elected president should only fulfill his duties for three-quarters of his term violates the thing that keeps American democracy alive.  Anyone who suggests otherwise should acknowledge their fundamental disinterest in the Constitution.”


SMU is a nationally ranked private university in Dallas founded 100 years ago. Today, SMU enrolls approximately 11,000 students who benefit from the academic opportunities and international reach of seven degree-granting schools.