The Volokh Conspiracy

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The President's and Senate's Duties When a Supreme Court Vacancy Arises During an Election Year

Here's what some very prominent progressive law professors have to say.

|The Volokh Conspiracy |


A couple of dozen progressive constitutional law professors, including several very prominent ones, have written a letter that, taken seriously, means that President Trump has a constitutional duty to nominate a new Supreme Court Justice and the Senate has the duty to hold a floor vote this year. Here's an excerpt from their argument:

Article II of the Constitution is explicit that the president "shall nominate . . . judges of the Supreme Court." There is no exception to this provision for election years. Throughout American history, presidents have nominated individuals to fill vacancies during the last year of their terms. Likewise, the Senate's constitutional duty to "advise and consent" – the process that has come to include hearings, committee votes, and floor votes – has no exception for election years…. We urge the President to nominate as soon as reasonably possible an individual to fill the vacancy existing on the Court and the Senate to hold hearings and vote on the nominee.

Of course, they wrote this in 2016, and almost certainly did not mean it to be taken seriously now that the shoe is on the other foot. But it might be worth asking them.

Note that the letter in question has mysteriously disappeared from the American Constitution Society's website, but still can be found via the Wayback Machine.

UPDATE: Note: The argument in the letter regarding the Senate's duty was silly when it was made, and it's silly today, but any law professor who publicly makes a constitutional law argument when it benefits his "team" should be willing to stick by it when it benefits the other side. Yet I doubt that any of the signators will be publicly repeating this argument this Fall.

Meanwhile, a Twitter follower managed to find the letter on the ACS website, so apologies for implying that they memory-holed it, I couldn't find it at the original link nor via Google.

FURTHER UPDATE: A very similar letter was sent by 350 or so law professors to the Senate Judiciary Committee, concluding: "The Senate Judiciary Committee should hold a prompt and fair hearing and the full Senate should hold a
timely vote on the president's nominee."