Q&A with UConn Law Prof. Douglas M. Spencer
Spencer explains the legal powers of the President and Senate in a Supreme Court nomination. He also answers the question: “What happens if the election is contested?”
UConn Law and Public Policy Professor Douglas M. Spencer is an expert in constitutional law, the Supreme Court and election law. We asked him to explain what legal steps are involved in Supreme Court nominations and what happens if the election gets taken to court.
Q: Why has this Supreme Court justice nomination sparked such controversy?
Spencer: Trump said he's going to nominate somebody on Saturday, that'll be 38 days until the election, and only 25 of which are working days for the Senate. And so that would be just a very fast process under any circumstances, let alone the fact that we have this big election. So it would be changing a norm. But it would not be breaking the law.
So 51 votes are needed from the Senate to approve the Supreme Court nominee. There are 53 Republican senators right now, but two of them have said that they're not going to support the bid right before the election. Isn't the Senate makeup going to change with this election?
Spencer: In fact, it's more likely than not. If you look at the polls, and some of the predictive models right now look like [Democratic candidate] Joe Biden has a 75% chance of winning. Now, that's contained because who knows what will happen between now and November. The Senate also has a 60% chance of changing a little bit more than 50/50. But even though the election happens on November 3, those new senators don't take office until January. Even if Biden wins, and even if the Senate is going to become democratic, Republicans will try to hurry this through anyway.
And that is all within their power?
Spencer: There's a couple reasons why it's hugely controversial. One is, as you noted earlier, it just gets faster than normal. The reason why this is a huge controversy, is that in 2016 when Obama nominated [Judge Merrick Garland] in the last year of his presidency, most of these Republican senators said ‘you should never nominate and appoint someone during an election year. That's a decision that voters should make.’
And they were very clear: This isn't a political decision that we believe in. It's a value about American government we believe in and several of them said, ‘Look, we would have the same position, even if a Republican were in charge.’ So now we have this chance for them to show us whether this really was a value they believe in American government, or whether they're just hypocrites who are addicted to power.”
And that was seven months before the 2016 election?
Spencer: That's right. 237 days to be exact.
South Carolina Sen. Lindsey Graham's compelling statement back in 2016 was that it was the end of Obama's second term and the president was in that lame duck sort of period of time. Do you think that that really makes a difference?
Spencer: I don't think it makes a difference. No matter what, there will be a new president...Because if you're Trump and you think you're going to win, it doesn't matter whether you appoint the person now or in six months. You'll have the ability to do that anyway.
If the reason you're rushing is because you're afraid you're going to lose, then that's even worse, because now you recognize that Americans may not want you to do this, and they're about to vote you out. And so you're still moving forward with it anyway.
There's one other difference. The parties were split in 2016. The President was a Democrat. The Senate was Republican. Right now both share a party. Politically, that obviously makes a difference if you're just trying to go for power.
Republicans are arguing: ‘Look, voters put us in charge of all the branches of government. So that was the voters telling us to do these kinds of things. If we're split, then the people are telling us we want you to tread more carefully and be slower.’ So that's another difference and argument that's been made.
So no matter how the election goes, there is this imminent question of: “Is it going to be a contested election?” From a legal standpoint, what measures are in place to make sure we can handle the possibility of a contested election?
Spencer: There are a couple of different layers to it. First of all, some of these questions that Trump is raising about whether things are going to be fraudulent or trying to contest the results, those debates could end up at the Supreme Court.
Some have argued that we can't have an even number of people at the Supreme Court, because it would be terrible if that decision fell to the Supreme Court and they ended up in a four-to-four tie. So that's one reason why we need to get this ninth justice on the court. I'm not so sure about that.
If Trump hurried and put someone on the court, and then that exact person cast the tie breaking vote that keeps him in office, that would blow up our whole country. I think people would be really upset about it.
There is kind of a connection between this point and the previous point. Politically, we are hopeful that the leaders of our country who run the Senate — people like Mitch McConnell, and Lindsey Graham — that if Trump loses the election, they will start making statements saying that [Trump] is not going to be the president any longer and we won't support him.
But the Constitution says that the President's term ends at noon on January 20. So at that point, if we want to play a silly hypothetical, like Trump just sits in the Oval Office and says he not leaving — well, at that point, he's trespassing. And there are marshals — basically the Secret Service — and they would escort him out as a trespasser. That's ultimately what would happen if it really came down to this.
“Let's imagine that the presidential election result is still unknown. There's some question and debate in the Supreme Court and on January 20, 2021 at noon, President Trump's term ends. He has to be escorted out of the White House.”
But if they're fighting in court over who is the rightful president, and there is no known answer yet, would Trump still act as president while that's being decided?
Spencer: The 12th Amendment says what do we do if we're not sure who has the most electoral college votes. It says the Congress [U.S. House of Representatives] gets to decide and each state gets one vote.
If that process breaks down — either ends in a tie 25-to-25 or states refuse to vote — then the 20th Amendment says, if for any reason the president is unable to serve, or there is no president, either because the president died or resigned or was impeached, or there's been no resolution to the Electoral College, then Congress gets to decide what would happen.
Congress passed a law that says if the president is unable to serve, the vice president would serve. But presumably if the election results were up in the air, there'd be no vice president either. The next person in line is the Speaker of the House of Representatives. Right now, that's Nancy Pelosi. And presumably, it will be Nancy Pelosi, but the new Congress that is arriving on January 3, as I mentioned before, they'll get to vote for their new speaker of the house. They will probably keep Nancy Pelosi. But they might recognize that the president’s office is going to be open and elect somebody else. In either case, the marshals would escort Donald Trump out of the White House, and Nancy Pelosi would be acting president until everything was resolved.
It's an interesting process, but it's so complicated.
Spencer: Totally. The only good news, from my perspective, is that there actually is a plan in place. There's no situation in which there's a vacuum of power and we don't know who is leading us.
I think the sad part is that very few people know all of these technical rules. And so, if the Republicans all of a sudden see Nancy Pelosi sitting in the Oval Office, they're going to freak out and say, ‘Wait, this can't be fair.’
This is where I think the media and your newsletter can be helpful to let people know now — these are the rules before the game has been played.
If this is what ends up happening, it's not because anyone's cheated or something's gone wrong. It's just that you didn't know about it. And so you should educate yourself about it.
The law actually is called the Presidential Succession Act. The 20th Amendment says Congress gets to decide. They passed this law really early in, like the 1800s. But it was updated, after JFK was assassinated, to include death or assassination as part of its process.
This interview was edited for length and clarity.
Top photo of Prof. Spencer courtesy of UConn Law.