The Constitutional Rule on Filling Supreme Court Vacancies in an Election Year

Joe Biden and Lindsey Graham have both flip-flopped on the appropriateness of confirming a new Supreme Court justice during a presidential election year.

While pushing for the confirmation of 2016 Obama-appointee Merrick Garland, then-vice president Biden, who had served as chairman of the Senate Judiciary Committee during George H. W. Bush’s final year in office, said: “I made it absolutely clear that I would go forward with the confirmation process as chairman even a few months before a presidential election.” Biden now opposes moving forward with a Supreme Court confirmation in an election year. 

In 2018, Lindsey Graham, the current chairman of the Judiciary Committee, promised to hold open a Supreme Court vacancy during the final year of President Trump’s first term, a pledge he abandoned in 2019. (Contrary to many reports in the press, Senate majority leader Mitch McConnell did not make the same promise or argument as Graham; McConnell said that when the presidency and the Senate were held by different parties, an election-year vacancy should be held open to let the voters settle the dispute.)

But the flip-floppery of Biden, Graham, and many others doesn’t change the fact that there is a real and clear constitutional standard: The president has the constitutional authority to appoint a nominee when vacancy arises, and the Senate has the constitutional authority to confirm or block that nominee (with or without an up-or-down vote).