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The role of Congress in Appointments

Is the Congressional power of approval equal to a president's power to nominate?

  • Yes, Congress can approve or reject based on anything, same as the president

    Votes: 6 50.0%
  • No, Congress should yield to president and approve or reject based on qualifications and merits

    Votes: 6 50.0%

  • Total voters
    12

alaro45

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If so, at what point does it become irresponsible for a president to ignore the option of compromising choosing to just leave a position open?
 
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I think the power is equal and if neither chooses to yield then the people can make the decision in the next election by who they elect.
 

Southern Dad

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It's called checks and balances. The purpose of the Senate advising and consenting on nominees is to cause a President to pick more palatable nominees. Nominees that the states approve, keep in mind that Senators were chosen by the states and represent the states.
 

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If so, at what point does it become irresponsible for a president to ignore the option of compromising choosing to just leave a position open?

That is a bit of a debate point.

Prior to the 17th Amendment the idea was to balance Presidential appointment of a Supreme Court judge against State interests. As Southern Dad points out before the 17th Amendment, filling the Federal Senate was handled by various State legislatures to varying degrees of problems. Post the 17th Amendment the idea is the Senate, now elected by the voter, is still a counterbalance to Presidential nomination for a vacant Supreme Court Seat.

The reason I am going through all this is ultimately the voter is responsible for a Supreme Court Seat being vacant for too long. If the people elect a President of one party, but hand the Senate (and Congress) to the other party it is all that more unlikely the two will agree on a Supreme Court nominee. Not always the case, but happens to be a strong potential consequence that a liberal leaning President will nominate a liberal leaning judge and a "conservative" Senate would not agree to that.

Present conditions have a slightly different take on this though. Republicans in the Senate now are not even allowing a nomination to proceed, basically trying to ignore it until post the election for a new President. In this case the Republican Senate is in error, they have no real Constitutional authority to determine all on their own that a sitting President is too close to the end of his 2nd term to permit a nomination process for a vacant seat. I've looked into this a couple of times, and cannot find much supporting what the present Congress is doing.
 

Southern Dad

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That is a bit of a debate point.

Prior to the 17th Amendment the idea was to balance Presidential appointment of a Supreme Court judge against State interests. As Southern Dad points out before the 17th Amendment, filling the Federal Senate was handled by various State legislatures to varying degrees of problems. Post the 17th Amendment the idea is the Senate, now elected by the voter, is still a counterbalance to Presidential nomination for a vacant Supreme Court Seat.

The reason I am going through all this is ultimately the voter is responsible for a Supreme Court Seat being vacant for too long. If the people elect a President of one party, but hand the Senate (and Congress) to the other party it is all that more unlikely the two will agree on a Supreme Court nominee. Not always the case, but happens to be a strong potential consequence that a liberal leaning President will nominate a liberal leaning judge and a "conservative" Senate would not agree to that.

Present conditions have a slightly different take on this though. Republicans in the Senate now are not even allowing a nomination to proceed, basically trying to ignore it until post the election for a new President. In this case the Republican Senate is in error, they have no real Constitutional authority to determine all on their own that a sitting President is too close to the end of his 2nd term to permit a nomination process for a vacant seat. I've looked into this a couple of times, and cannot find much supporting what the present Congress is doing.

I believe that President Obama actually selected well with Merrick Garland. He picked someone who is not far left and someone he thought might be able to get Senate consent. One of the biggest problems is that Barack H Obama does not know how to lead. It isn't his fault. He's never had any prior experience leading anything. He was never governor of a state, mayor of a city, or even troop leader in the Boy Scouts. Yes, I know that just got the liberals hackles up. But think about it, every time he takes the lectern he challenges the Republicans to defy him. He insults them, he berates them. Is it any surprise that he is met with resistance.

Here's how President Southern Dad would have handled the situation. Because balance on the Supreme Court is important, I would have brought Republicans into the tent. I'd have asked the Republican leadership to give me a list of twenty that they would consider. I would have had the Democrat leadership give me the same. We'd then meet and compare the list looking for people that were on both lists. Then we negotiate. Another tact that I'd have looked at was discretely asking Ruth Bader Ginsberg to resign, offering to let her give me a short list for her replacement. If she acquiesced then I would have named one person from the Republicans list and one from the Democrats list. Even better if they were on both lists.

But the last thing that I'd have done was get up on the podium and demand the that Senate do its job. Especially when he, as Senator Obama spoke out against the same thing with the prior administration.
 

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I believe that President Obama actually selected well with Merrick Garland. He picked someone who is not far left and someone he thought might be able to get Senate consent. One of the biggest problems is that Barack H Obama does not know how to lead. It isn't his fault. He's never had any prior experience leading anything. He was never governor of a state, mayor of a city, or even troop leader in the Boy Scouts. Yes, I know that just got the liberals hackles up. But think about it, every time he takes the lectern he challenges the Republicans to defy him. He insults them, he berates them. Is it any surprise that he is met with resistance.

Here's how President Southern Dad would have handled the situation. Because balance on the Supreme Court is important, I would have brought Republicans into the tent. I'd have asked the Republican leadership to give me a list of twenty that they would consider. I would have had the Democrat leadership give me the same. We'd then meet and compare the list looking for people that were on both lists. Then we negotiate. Another tact that I'd have looked at was discretely asking Ruth Bader Ginsberg to resign, offering to let her give me a short list for her replacement. If she acquiesced then I would have named one person from the Republicans list and one from the Democrats list. Even better if they were on both lists.

But the last thing that I'd have done was get up on the podium and demand the that Senate do its job. Especially when he, as Senator Obama spoke out against the same thing with the prior administration.

I can agree to a point that there is plenty of blame to go around as to why Merrick Garland's nomination became a political fiasco.

Obama may have made error in *continuing* to trying to lecture and pressure the Senate to proceed, but Obama was well within his authority to make the nomination in the first place and in some ways I understand his frustrations. Our issue is Republican Senators politically decided to ignore all this until after the election, almost from the very moment that Scalia died.

Key Senators have met with Garland several time and they all generally offer the political toned message that their decision to delay this has nothing to do with Garland himself. Agree or not, buy the message or not, Republicans are setting themselves up for a real issue on-going.

I would still argue well that there is no real Constitutional authority granted to the Senate to decide a sitting President's nomination is unworthy of process because of the pending elections. Even Orrin Hatch said something like "political fireworks of a (this) presidential election" is why they punted the nomination. So they do not get to say down the road that Garland is too liberal, or too dangerous to this or that right, etc. They are making this about Obama and a pending election. My main issue is how the hell did Congress grant themselves that authority to determine that the authority of a President to make that nomination is invalid?

To me it seems like Congress (and the President for other subjects to be fair) are making up the rules as they go along... and that puts us all in danger.

As for what I would do, I cannot rule out acting like Obama has in asking Congress (Senate) to do their jobs. If I made a nomination and they ignored it from a due process point of view then I might have very well lectured them as well from the mic. But I am sure I would run around and find a more Conservative Judge nomination just to appease them. Because if they agreed to it, then it was about Garland and they are all full of ****.
 

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If so, at what point does it become irresponsible for a president to ignore the option of compromising choosing to just leave a position open?
I would opine it's always wrong to not consider a nomination.

Constitutionally, the President nominates and the Senate considers and then affirms or denies. In this case however, the Senate has decided to abrogate their duties to the Constitution for political expediency, and will not even consider a nomination - qualified or not! I believe they are wrong.

And it is us, The People, that suffer with a 'less than superior' Supreme Court. Two major cases since February have had 4-4 splits, meaning the Court took the case but didn't rule on it! The Court already seems to be reacting to the loss of a tie-splitting number of Judges by rejecting granting certiorari in many otherwise likely cases, leaving it this year with an extremely low workload. Ordinarily, the Court grants cert in about 130 cases a year. As of May they've taken on only 6 cases since Scalia's February death, in what's ordinary the busy time to grant cert. This would put them on-track to take 24 cases annually - an unheard of number.

That's leaves quite a few cases where Justice is not served, and it's not just the case principles that suffer, but the entire country due to lack of precedent.

Some may argue that a 4-4 tie is still a legally functioning Court, and a staffing of 8 Justices occurs occasionally due to illness or recuse; this is true. But in those instances the Court is hobbled due to matters out of human control, whereas this current crippling is done intentionally by individuals for specific self-serving political gain.

As you may have guessed from the above, I'm very much against the GOP's actions here.
 

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I believe that President Obama actually selected well with Merrick Garland. He picked someone who is not far left and someone he thought might be able to get Senate consent. One of the biggest problems is that Barack H Obama does not know how to lead. It isn't his fault. He's never had any prior experience leading anything. He was never governor of a state, mayor of a city, or even troop leader in the Boy Scouts. Yes, I know that just got the liberals hackles up. But think about it, every time he takes the lectern he challenges the Republicans to defy him. He insults them, he berates them. Is it any surprise that he is met with resistance.

Here's how President Southern Dad would have handled the situation. Because balance on the Supreme Court is important, I would have brought Republicans into the tent. I'd have asked the Republican leadership to give me a list of twenty that they would consider. I would have had the Democrat leadership give me the same. We'd then meet and compare the list looking for people that were on both lists. Then we negotiate. Another tact that I'd have looked at was discretely asking Ruth Bader Ginsberg to resign, offering to let her give me a short list for her replacement. If she acquiesced then I would have named one person from the Republicans list and one from the Democrats list. Even better if they were on both lists.

But the last thing that I'd have done was get up on the podium and demand the that Senate do its job. Especially when he, as Senator Obama spoke out against the same thing with the prior administration.
I believe your sentiments are in the right place, but there's no mechanism in place for the President to secure a list from the GOP (or the Democrats)! That's why we have the current process set through the Constitution.

This is not about affirming or denying a nominee, but about denying the nomination process itself!

There would be no problem here if the Senate voted and denied the nominee, as is the accepted Constitutional process. But the GOP fear if the nomination process sees the public light, the pressure from the citizenry will come to bear on their activities - so the are not allowing the proceedings. And when you fear the citizens turning against you for making a process public, what's the saying about your motives and operation?

There ya' go!
 

Southern Dad

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I believe your sentiments are in the right place, but there's no mechanism in place for the President to secure a list from the GOP (or the Democrats)! That's why we have the current process set through the Constitution.

This is not about affirming or denying a nominee, but about denying the nomination process itself!

There would be no problem here if the Senate voted and denied the nominee, as is the accepted Constitutional process. But the GOP fear if the nomination process sees the public light, the pressure from the citizenry will come to bear on their activities - so the are not allowing the proceedings. And when you fear the citizens turning against you for making a process public, what's the saying about your motives and operation?

There ya' go!

Nothing in our Constitution requires the Senate to actually advise and consent on the nomination. Did you know that if the Senate does confirm a nominee, the President isn't required to actually follow through with the appointment? If Hillary R Clinton were to win, then the Senate in lame duck confirmed Merrick Garland, the President could decide not to nominate him. Then he could nominate someone very far left or let Hillary do it. What was Senator Obama's views on last year appointments to the SCOTUS?
 

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Nothing in our Constitution requires the Senate to actually advise and consent on the nomination. Did you know that if the Senate does confirm a nominee, the President isn't required to actually follow through with the appointment? If Hillary R Clinton were to win, then the Senate in lame duck confirmed Merrick Garland, the President could decide not to nominate him. Then he could nominate someone very far left or let Hillary do it. What was Senator Obama's views on last year appointments to the SCOTUS?
Well, here's the text itself:

"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

[Article II, Section 2, Clause 2]

I see directives given to both the President & Senate, and I see nothing stating these directives are 'optional'.

Do you?
 

matchlight

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That is a bit of a debate point.

Prior to the 17th Amendment the idea was to balance Presidential appointment of a Supreme Court judge against State interests. As Southern Dad points out before the 17th Amendment, filling the Federal Senate was handled by various State legislatures to varying degrees of problems. Post the 17th Amendment the idea is the Senate, now elected by the voter, is still a counterbalance to Presidential nomination for a vacant Supreme Court Seat.

The reason I am going through all this is ultimately the voter is responsible for a Supreme Court Seat being vacant for too long. If the people elect a President of one party, but hand the Senate (and Congress) to the other party it is all that more unlikely the two will agree on a Supreme Court nominee. Not always the case, but happens to be a strong potential consequence that a liberal leaning President will nominate a liberal leaning judge and a "conservative" Senate would not agree to that.

Present conditions have a slightly different take on this though. Republicans in the Senate now are not even allowing a nomination to proceed, basically trying to ignore it until post the election for a new President. In this case the Republican Senate is in error, they have no real Constitutional authority to determine all on their own that a sitting President is too close to the end of his 2nd term to permit a nomination process for a vacant seat. I've looked into this a couple of times, and cannot find much supporting what the present Congress is doing.

How is the Senate preventing the President from making nominations? Mr. Obama can nominate anyone whenever he likes. The Senate, though, can then decline to offer its advice or consent as to the nomination, in which case the President may not appoint the nominee.
 

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Well, here's the text itself:

"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

[Article II, Section 2, Clause 2]

I see directives given to both the President & Senate, and I see nothing stating these directives are 'optional'.

Do you?

The President "shall nominate" the officers listed. That is an unconditional requirement. He also "shall appoint" those officers, but that requirement is conditional. The condition is that his appointment must be made "by and with the advice and consent of the Senate." Nowhere in the clause, though, is the Senate required to act. It is left free either to give or withhold its advice and consent as to the President's nominations. Also, both the Senate's advice and its consent are needed for an appointment to take place.

I take all this to mean the Senate may do any of several things. It may consider a nominee, advise the President of its views about him, and consent to his appointment. Only in this case can the appointment be made. Or, the Senate may advise the President of its views while not consenting to the nomination, so that he may nominate some other person whose appointment it is more likely to consent to; or it may consider a nominee and not consent to appoint him, without advising the President as to why it objects to that person; or it may take no action at all, either to advise the President about a nomination or to consent to it.
 
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Southern Dad

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Well, here's the text itself:

"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

[Article II, Section 2, Clause 2]

I see directives given to both the President & Senate, and I see nothing stating these directives are 'optional'.

Do you?

Read it. Does it say that the Senate has to advise and consent? It says that the president has the power to nominate but it does not anywhere in it say that the Senate has to act in any time frame. How did Senator Obama feel about last year appointments to the SCOTUS?
 

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The President "shall nominate" the officers listed. That is an unconditional requirement. He also "shall appoint" those officers, but that requirement is conditional. The condition is that his appointment must be made "by and with the advice and consent of the Senate." Nowhere in the clause, though, is the Senate required to act. It is left free either to give or withhold its advice and consent as to the President's nominations. Also, both the Senate's advice and its consent are needed for an appointment to take place.

I take all this to mean the Senate may do any of several things. It may consider a nominee, advise the President of its views about him, and consent to his appointment. Only in this case can the appointment be made. Or, the Senate may advise the President of its views while not consenting to the nomination, so that he may nominate some other person whose appointment it is more likely to consent to; or it may consider a nominee and not consent to appoint him, without advising the President as to why it objects to that person; or it may take no action at all, either to advise the President about a nomination or to consent to it.
I appreciate your opinion and expertise in this matter, and if I understand correctly you're making the argument that the President is Constitutionally directed to nominate, but the next clause applying to the Senate is a requirement encumbrance upon the President, but optional to the Senate. Correct?

I don't see this reading at all.

It would seem obvious that the Senate has the right to not consent to a specific nominee, but by your argument the Senate has no obligation to staff the Court whatsoever!

Is this what you're arguing? Because that reading strikes me as incredulous
 

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Read it. Does it say that the Senate has to advise and consent? It says that the president has the power to nominate but it does not anywhere in it say that the Senate has to act in any time frame. How did Senator Obama feel about last year appointments to the SCOTUS?
You are correct in that the Constitution does not propose a time frame, but I see nothing claiming review is an optional process. See my reply to matchlight. You're essentially saying the Senate can eliminate the Supreme Court (by never acting), and I find it extremely suspect the framers intended that.
 

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You are correct in that the Constitution does not propose a time frame, but I see nothing claiming review is an optional process. See my reply to matchlight. You're essentially saying the Senate can eliminate the Supreme Court (by never acting), and I find it extremely suspect the framers intended that.

What was Senator Obama's view on last year appointments by the President to the Supreme Court? What has changed?
 

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What was Senator Obama's view on last year appointments by the President to the Supreme Court? What has changed?
We're debating Constitutionality, and you now want to make Mr. Obama the Judge & Jury here? It seems Mr. Obama's currently in agreement with me, so I suppose the case is closed.
 

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We're debating Constitutionality, and you now want to make Mr. Obama the Judge & Jury here? It seems Mr. Obama's currently in agreement with me, so I suppose the case is closed.

Ah yes. I understand. The fact that when President Obama was Senator Obama and he was not in favor of the President making last year appointments to the Supreme Court should be set aside and not discussed because now the shoe is on the other foot. As I said, nothing says the Senate has to give its advice and consent. Personally, I think that they should advice and consent on Merrick Garland. President Trump will get to appoint Ruth Bader Ginsberg's replacement.
 

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Ah yes. I understand. The fact that when President Obama was Senator Obama and he was not in favor of the President making last year appointments to the Supreme Court should be set aside and not discussed because now the shoe is on the other foot. As I said, nothing says the Senate has to give its advice and consent. Personally, I think that they should advice and consent on Merrick Garland. President Trump will get to appoint Ruth Bader Ginsberg's replacement.
No, what I'm saying is: This is bringing politics into what I see as a Constitutional discussion.

The thing is, I don't read the bolded as an optional one way predicated clause: "He shall have Power, by and with the Advice and Consent of the Senate."

If it's read as you are claiming, that reading has just given the Senate the option in killing-off the Supreme Court, and once again I don't believe the framers provided a co-equal branch of government so that one of it's other two equals could kill it.

The politics of this are a separate issue, and politicians say whatever's expedient, with Obama being no exception.
 
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No, what I'm saying is: This is bringing politics into what I see as a political discussion.

The thing is, I don't read the bolded as an optional one way predicated clause: "He shall have Power, by and with the Advice and Consent of the Senate."

If it's read as you are claiming, that reading has just given the Senate the option in killing-off the Supreme Court, and once again I don't believe the framers provided a co-equal branch of government so that one of it's other two equals could kill it.

The politics of this are a separate issue, and they say whatever's expedient, with Obama being no exception.

Right, does it have a timetable on that? President Obama is a university educated constitutional scholar. Are you saying that as a US Senator, he would knowingly go against the Constitution when he stated his opinion about last year SCOTUS appointments? Like it or not this is a political topic, and it's on a political forum.
 

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Right, does it have a timetable on that? President Obama is a university educated constitutional scholar. Are you saying that as a US Senator, he would knowingly go against the Constitution when he stated his opinion about last year SCOTUS appointments? Like it or not this is a political topic, and it's on a political forum.
Obama, is a politician; he like others will say things for political expediency. And he like other Presidents has had his Executive Orders ruled Unconstitutional, so he's far from infallible. So I don't buy your using him as the arbitrator here.

The Constitution does *not* give specific time-frames to many of it's directives, but that does not mean they can be *abrogated*. So if your argument is the nominee process can be indefinitely delayed due to no time period specified by the Constitution, I argue you are wrong!

And ironically enough, it will be the Court itself that decides this all, if a citizen with standing files!
 

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Obama, is a politician; he like others will say things for political expediency. And he like other Presidents has had his Executive Orders ruled Unconstitutional, so he's far from infallible. So I don't buy your using him as the arbitrator here.

The Constitution does *not* give specific time-frames to many of it's directives, but that does not mean they can be *abrogated*. So if your argument is the nominee process can be indefinitely delayed due to no time period specified by the Constitution, I argue you are wrong!

And ironically enough, it will be the Court itself that decides this all, if a citizen with standing files!

Here's the thing, by the time the SCOTUS were to decide it... It would be a moot point.
 

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Here's the thing, by the time the SCOTUS were to decide it... It would be a moot point.
Perhaps in this specific incident, yes.

But it seems like a good thing to get it decided or codified in some way.

What if the Dems decide instead of 1 year, it should be 18 mos prior to an election? or 23 mos? I don't like seeing the Court deficient in any manner at all.

And actually, in the President's not-too-long-ago interview on Fox he seemed to issue a veiled threat to the Dems doing just this someday (delay much longer to their advantage - perhaps much of a term!).
 

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Perhaps in this specific incident, yes.

But it seems like a good thing to get it decided or codified in some way.

What if the Dems decide instead of 1 year, it should be 18 mos prior to an election? or 23 mos? I don't like seeing the Court deficient in any manner at all.

And actually, in the President's not-too-long-ago interview on Fox he seemed to issue a veiled threat to the Dems doing just this someday (delay much longer to their advantage - perhaps much of a term!).

Elections have consequences. The party in control of the White House gets to make nominations. The party in charge of the Senate gets to decide if they will be brought to the floor. Harry Reid was able to kill a lot of bills by never bringing them to floor for a vote. His successor is doing the same thing. The only thing that changed was the letter after the majority leader's name.
 

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Bagdad, La.
Gender
Male
Political Leaning
Very Conservative
If so, at what point does it become irresponsible for a president to ignore the option of compromising choosing to just leave a position open?

The president has to live with Congress' decision. If the reject, then he has to start looking for a new nominee.

It's all in The Constitution.
 
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