What are your thoughts on the nomination and confirmation of a new Justice during an election year?

Under Article II, Section 2, of the Constitution, the Supreme Court nomination process starts with the selection of a Supreme Court nominee by President Trump. The President then will officially notify the Senate of the nomination—usually via a written statement. This is related to the Constitution’s “Appointments Clause” in Article II, Section 2, Clause 2, which reads that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”

Article I Section 5 of the Constitution allows both houses of Congress to create their own rules for proceedings, including the judicial confirmation process. And under the Senate’s current standing rules, the nomination is sent to the Senate Judiciary Committee, unless the nominee is a current or former Senate member.

A different scenario would involve a recess appointment to the Supreme Court by President Trump. The Constitution allows the President to appoint a member to the Supreme Court if a vacancy exists and Congress is not in session. Article II, Section 2, Clause 3 of the Constitution permits the President “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The last Supreme Court recess appointments were during the Eisenhower era: Earl Warren, William Brennan, and Potter Stewart. In fact, President Eisenhower appointed Justice Brennan to the Court on October 15, 1956, just weeks before a presidential election. The Senate then confirmed Brennan on March 19, 1957.

However, the definition and practice of when the Senate is in recess has changed since the 1950s. In a recent Congressional Research Service report, the CRS cites the Supreme Court’s 2014 decision in National Labor Relations Board v. Noel Canning as limiting the President’s window to make a recess appointment to occasions when the Senate has adjourned for at least 10 days.

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