If the President doesn't name a candidate to fill a Supreme Court vacancy, can the Senate fill the seat, anyway?

If Biden were to win re-election, the Republicans take the Senate, and a Supreme Court vacancy occurs, a Republican Senate would never confirm any Biden candidate, if for no other reason than pure spite.

The Constitution allows a President to not name a candidate. This would create an 8-member, 5-3 Republican SCOTUS, which is better than a 6-3 Republican majority. If one Republican votes with the Dems, you have a tie and no change from the status quo.

In this scenario, I don't think that the Senate could appoint a candidate, hold a confirmation hearing and fill the vacancy.

1 Answer 1


If POTUS doesn't name a candidate to fill a SCOTUS vacancy, can the Senate fill the seat, anyway?

No, the Senate cannot nominate or appoint candidates, it can only confirm (or not) Presidential nominations and appointments.

See the US Constitution Article 2 Section 2 Clause 2:

... and he [the President] 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 ...


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