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Suppose an incumbent President loses an election in November and a supreme court vacancy were to emerge right after his loss but before the swearing-in of his successor. Would he be able to fill this vacancy especially seeing that he still is technically the president and his term expires in January according to an amendment to the constitution?

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    Even a sitting president can be denied filling a Supreme Court position, as was the case with the nomination of Neil Gorsuch. Hence, it depends on the Senate.
    – Dohn Joe
    Aug 3, 2020 at 7:03
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    short answer: yes.
    – dandavis
    Aug 3, 2020 at 7:32
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    @DohnJoe A lame-duck president is a "sitting" president.
    – Azor Ahai -him-
    Aug 3, 2020 at 16:18
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    Oh, and btw the amendment to the Constitution (#20) did not push the end of the President's term to January from Election Day as you imply, it moved it up from March, due to communication advances.
    – Azor Ahai -him-
    Aug 3, 2020 at 20:32
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    @DohnJoe You should probably be linking to Merrick Garland rather than Neil Gorsuch, since Garland was the one whose nomination was stolen.
    – TylerH
    Aug 4, 2020 at 2:55

3 Answers 3

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A lame duck President could nominate someone to Supreme Court vacancy, but the Senate may or may not confirm.

This happened in 1800 when John Adams lost his re-election. Chief Justice Oliver Elsworth resigned. Adams nominated John Jay (the first Chief Justice who had resigned in 1795 to become Governor of New York.) who was then confirmed by the Senate. Jay refused the appointment. Adams then nominated John Marshall who was confirmed by the Senate.

https://blog.oup.com/2016/02/john-marshall-chief-justice/

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    This also happened much more recently in 2016 when Mitch McConnell flat out refused to even consider Merrick Garland's nomination, ostensibly because it was an election year.
    – Shadur
    Aug 3, 2020 at 8:24
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    I assume John Jay had been Chief Justice and stepped down, and Adams was nominating him to retake the position? As written, the timeline is a bit unclear.
    – Bobson
    Aug 3, 2020 at 12:14
  • How quickly could the Senate do this? Say RBG dies on December 31 2020, could the Senate process the new judge before Jan 17 2021?
    – Simd
    Aug 4, 2020 at 11:00
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    @Anush - it would have to be the next Senate, because they would get sworn in on January 3.
    – PoloHoleSet
    Aug 4, 2020 at 13:56
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    @Shadur - That wasn't after the election though, it was quite a few months before the election, and the president in question wasn't running.
    – T.E.D.
    Aug 4, 2020 at 17:15
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There are no rules or limitations about when, where or who a President can nominte to a Supreme Court vacancy other than that the acting President must make the nomination and the current Senate must confirm the nominee by majority vote. So yes.

Even the odd case where an acting President makes a nomination on Jan 4 (after new Congress is seated, but new President has yet to transition) and have his selection confirmed is possible. So a losing incumbent could get a confirmed SC justice if a sympathetic new Senate is elected.

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Not only is the answer yes, but it would also most likely happen if the events you laid out come to pass. It is inconceivable that the senate republicans would forgo appointing another person to the SC and the senate democrats would be powerless to stop them. It would not be comparable to Obama / Garland as the republicans would still be in complete control of the relevant bodies needed to appoint and approve a SC justice (judicial appointment cannot be filibustered).

The biggest impediment would be Trump, whose behavior (assuming he loses) is basically unpredictable. He may refuse to nominate for whatever reason. The senate refusing to confirm is unthinkable assuming whatever nominee is federalist society approved.

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  • The logistics might not make that possible. If they bypass the even the most cusory vetting, then the nomination might blow up in their faces. They'd have to forego the dog and pony show where the nominee meets with people to get them on board. And even without a filibuster, there are potential parliamentary maneuvers that could slow things down. Factor that in with how many days a week the Senate actually works, whether they're willing to cut into holiday breaks, and the fact that Congressional session ends at the beginning of January. They'd still try, but it might take some effort.
    – PoloHoleSet
    Aug 4, 2020 at 13:31
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    I think this is a pretty strong statement given the small majority the Senate currently holds. It's easily possible that a few lame-duck Senators decide to reject the nomination, along with the possibility that some of the less Trump-aligned Senators - Lisa Murkowski, Susan Collins, and Mitt Romney - vote to not confirm (or simply refuse to consider it) along with them. I'm not sure I'd say it's "likely", but it's not a forgone conclusion.
    – Joe
    Aug 4, 2020 at 16:31
  • This answer presumes that full and unconstrained use of executive and legislative power is inconceivable not to be used. While the US democracy is damaged, it isn't quite so far gone as that. There are things perfectly legal under the US constitution that the Republicans have not been willing to do in order to shore up their power; outside of any fondness for democratic legitimacy in the Republican party, it is possible that, if the Republicans are losing a triple majority, they might not want to provoke the Democratic party with the above maneuver.
    – Yakk
    Aug 5, 2020 at 14:16

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