Senator McConnell has already said that "President Trump’s nominee will receive a vote on the floor of the United States Senate." According to the NY Times regarding McConnell's statement:

Mr. McConnell was notably unclear, however, about the timing, whether he would push for such a vote before the election or wait until a lame-duck session afterward. Several of his members face tough election contests and might balk at appearing to rush a nominee through in such highly political conditions.

My question: If the vote is postponed until after the elections and Trump loses, will Trump's list of Supreme Court nominees still be considered? I assume that Biden already has a list of his own?

On the other hand, if the current list is irrelevant after Trump loses, then why would the NY Times say that the timing was unclear?


2 Answers 2


The NY Times article talks about the possibility of the confirmation vote on a Supreme Court Justice taking place during a lame-duck session - a Senate session occurring between election day in November and the convening of the new Senate on January 3rd 2021.

Even if President Trump loses the November presidential election, he will remain President until January 20th, when the new President will be sworn in. During the lame-duck period, the President retains all powers of his office, and remains the only person empowered to nominate Supreme Court Justices to be considered by the Senate under Article II, Section 2, Clause 2 of the Constitution (the Appointments Clause).

Assuming Trump nominates a candidate before the November election, the Senate Majority Leader, Mitch McConnell, can decide when to hold a confirmation vote in the Senate - before the election, or after the election in a lame-duck session.

Trump could also nominate a candidate after the election, whether or not he is a lame-duck President, and McConnell could choose to hold a confirmation vote before the new Congress convenes on January 3rd. This ambiguity is what the NY Times describes as unclear.

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    In other words, the assumption in the question that "the current list is irrelevant after Trump loses" is incorrect.
    – phoog
    Commented Sep 19, 2020 at 17:22

The "list" is a list of potential nominees. Each president makes their own list. The president selects one nominee and sends that name to the Senate for confirmation. (This does not preclude private conversations between the president and trusted members of the Senate about which name to send.)

The Senate Judiciary committee holds hearings for that one nominee. If confirmed by the committee, the nomination is sent to the Senate floor for a full vote. If rejected by the committee or by vote of the full Senate, the president will be asked nominate another.

If the vote is postponed until after the elections and Trump loses, will Trump's list of Supreme Court nominees still be considered?

The Senate never considers the list as a whole.

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