18

Even if Trump loses the Nov. 3 election, he will still have the full powers of the President until inauguration day on January 20th. My suspicion is that Trump will wait until after the election to nominate a Supreme Court pick for the following reasons:

  1. Holding out the prospect of another Supreme Court pick will boost turnout for the base who might otherwise be put off by his personality deficits. Historically, the Republican party has cared more about Supreme Court Nomination picks than the Democrat constituents.
  2. Keeping the seat open during the campaign will dominate the media coverage and diminish the available airtime to talk about personality deficits and poor choices made during the Pandemic.
  3. Rushing through a Supreme Court pick in the next month will look morbid and disrespectful when we haven't even had time for a funeral yet.
  4. There simply isn't enough time for a nomination process which on average takes 50 days and that's when there isn't anything else going on. A nomination process during the election would be extremely distracting from the campaigning process.

My question: If Trump loses the election, is there any political reason for him from to avoid appointing a justice during the lame duck period before inauguration day? The only thing I could think of would be that it would so enrage the democrats that they would feel justified in Court Packing.

  • 2
  • 8
    @MartinSchröder This is question about political ramifications, not legal ability. I actually stated that he has full powers until Jan 20 right in the first sentence of the question. – SurpriseDog Sep 19 at 16:39
  • 9
    @MartinSchröder I tend to agree this isn't a duplicate. The question isn't whether the President has the power to do it, but whether the political machine could pull off a lame duck SCOTUS approval.. – Machavity Sep 19 at 19:25
  • The average length of the process is probably not too relevant. It can go as fast or slow as the Senate wants it to. I guarantee this one will go through fast enough. – President James K. Polk Sep 20 at 14:57
  • 1
    @Acccumulation A startlingly large percentage of people think that if Trump loses, he won't be able to nominate anyone else. The average voter is very uninvolved and unknowledgeable. Politicians know this and play the game to maximum effect, which is why you can see them blatantly lying about known facts and getting away with it. – SurpriseDog Sep 20 at 18:12
5

The main reason is that there just isn't enough time. The normal process is

  1. You make a list of people to potentially nominate
  2. Your interview from that list to narrow it down
  3. You vet the candidate
  4. You nominate to the Senate
  5. The Senate does its own vetting
  6. The Judiciary Committee votes
  7. Full Senate vote

Unlike the President, some Senators can take office as early as the first week in January (depending on the rules of their state). So you have less than 8 weeks after an election to cram in a process that normally takes upwards of 6 months. For the Kavanaugh hearings, it took the Senate Judiciary committee nearly 2 months just to get to the point of voting (the Ford rape accusations would drag it out another month), and that doesn't count the time the White House took before nominating him. Add in that Democrats will be stalling at every turn to prevent a lame duck approval, and it seems highly unlikely.

| improve this answer | |
  • 4
    There are many historical examples of nominations that were done in under 30 days, but you are correct this is less common in the modern era, possibly because the nominations have become much more political. – SurpriseDog Sep 19 at 19:34
  • 2
    There's also the reality that, last time a Republican president nominated a SCOTUS justice without extensive vetting, it was Justice Souter, and he turned out to be rather liberal (and according to that NYT link, it still took them nearly 70 days to get him confirmed despite it being rather uncontroversial at the time). So they are not going to try that approach again, because a SCOTUS seat is for life. Whoever they nominate will be extensively vetted by the White House, and the Senate probably will want to do more vetting of its own. – Kevin Sep 20 at 0:31
  • 3
    @JCAA Probably not vetted. In Trump's case he already has a list, so #1 is done. But they would have to go through a FBI background check, past history check, etc. If the White House doesn't do it, Senate Dems and the press surely will – Machavity Sep 20 at 1:09
  • 1
    It is no surprise whatsoever that a vacancy on the Supreme Court was coming up. I would, on the contrary, be very surprised if the White House hadn't already vetted their list, and if the Democrats hadn't already vetted (or at least, extensively researched) this list and many other likely candidates as well. Politicians aren't stupid, and they should not have been taken by surprise at this development. – Stephan Kolassa Sep 20 at 14:58
  • 1
    The first three are reasons to present the nomination after the election. And the senate vetting can be done before the election with the voting being after the election. And it's not like the senate Republicans care about vetting; several them stated that the idea that the senate should consider whether the nominee is a rapist was an outrage. – Acccumulation Sep 20 at 18:09
9

You asked about political fallout, which is somewhat speculative.

Purely on procedural matters, he would have to shepherd the confirmation through Congress, either with the old Congress before the new one convenes or with the new Congress. Working with the new Congress between opening day and inauguration sounds incredibly tight. Even working with the old Congress after election risks running out of time, and some participants might be distracted by legal wrangling over election results.

This NYT article has the duration of various historical confirmations. Waiting until after the election would cut it dangerously close.

| improve this answer | |
  • So he will nominate a Justice in the next month, but the hearings will go on during and after the election? This sounds ripe from drama. – SurpriseDog Sep 19 at 15:26
  • 2
    @SurpriseDog, I'm not going to speculate either way. He could start now and try to get finished before the election, with the backup plan of finishing later. – o.m. Sep 19 at 15:36
  • 3
    @SurpriseDog - ...and we all know how hard this POTUS works to avoid drama. – T.E.D. Sep 20 at 15:45
4

One possible reason is that, due to the Arizona special election, he might no longer have enough votes to get his nominee confirmed.

Normally, newly elected Senators aren't sworn in at the start of the new Congress in the beginning of January, so even if the Democrats take back control of the Senate in this election, McConnell will still have a 2 month lame-duck term to get Trump's nominee confirmed.

The 2020 Senate election in Arizona, however, is not a normal election: it's a special election to fill the seat vacated by the death of John McCain. Under Arizona law, the winner of a special election will be sworn in as soon as the results are certified, which will occur on November 30th (with a possible 3-day delay).

Should Kelly win the election (FiveThirtyEight gives him a 78% chance), this would reduce the GOP majority to 52, meaning that it would only take only three Republican no-votes instead of four to spike the nomination should the confirmation process go on past November. This is still a highly unlikely scenario, but this year it's not true to say that there will be no differences with the lame-duck session.

| improve this answer | |

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .