Constitution doesn't prohibit Supreme Court nomination in election year

  • Supreme Court nominee Amy Coney Barrett is sworn in during a confirmation hearing last week before the Senate Judiciary Committee.

    Supreme Court nominee Amy Coney Barrett is sworn in during a confirmation hearing last week before the Senate Judiciary Committee. AP Photo/Patrick Semansky

Updated 10/17/2020 4:58 PM

Senate Republicans are working to fill a vacant Supreme Court seat following the death of Justice Ruth Bader Ginsburg in September.

Just before the 22-member Judiciary Committee began hearings last week on the nomination of Judge Amy Coney Barrett, Democratic presidential candidate Joe Biden claimed the process was unconstitutional.


"Look, the only court packing is going on right now," Biden said. "It's going on with the Republicans packing the court now. It's not constitutional what they're doing."

But the nomination and rushed confirmation hearings don't violate any clause in the U.S. Constitution. Article II of the Constitution says the president "shall nominate, and by and with the advice and consent of the Senate" appoint judges to the high court.

"There is nothing unconstitutional about nominating a judge in an election year," University of Virginia law professor Saikrishna Prakash told PolitiFact. "Whether to proceed on a nomination during (or after) an election year is wholly a matter of politics."

When a Supreme Court seat opened up in 2016 after Justice Antonin Scalia died, the Republican-controlled Senate blocked President Barack Obama's nominee from receiving a hearing because the vacancy occurred during an election year.

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Harvard University professor Laurence Tribe told PolitiFact that while Senate Republicans are not following basic democratic principles, they haven't done anything wrong.

"There is no anti-hypocrisy clause in the Constitution," he said.

Fauci takes issue with ad

In a recent ad from President Donald Trump's reelection campaign, infectious disease expert Dr. Anthony Fauci appears to praise the work done by the Trump administration in fighting the coronavirus.

But Fauci said he didn't agree to the appearance and his statement was misrepresented.

"In my nearly five decades of public service, I have never publicly endorsed any political candidate," Fauci told CNN. "The comments attributed to me without my permission in the GOP campaign ad were taken out of context from a broad statement I made months ago about the efforts of federal public health officials."

In the ad, a narrator says, "Together we rose to meet the challenge, protecting our seniors, getting them lifesaving drugs in record time, sparing no expense." Followed by Fauci saying, "I can't imagine that anybody could be doing more."


The clip was taken from a Fox News interview in March in which Fauci was talking about the dedication of the Coronavirus Task Force.

"I'm down at the White House virtually every day with the task force," Fauci said during the interview. "It's every single day. So, I can't imagine that under any circumstances that anybody could be doing more."

Trump campaign communications director Tim Murtaugh told CNN, "The words spoken are accurate and directly from Dr. Fauci's mouth."

Not prayers for Trump

While President Trump was hospitalized earlier this month, being treated for COVID-19, supporters gathered outside the medical facility.

Among the images shared on social media was a video showing a group of bikers purportedly praying for the president.

The eight-second clip was viewed more than a million times on Twitter. A Facebook user who posted the video included the caption, "Thousands of bikers gathered outside Walter Reed Hospital to pray for Trump."

But the video wasn't taken at Walter Reed National Military Medical Center in Maryland nor did it happen in October, according to The Associated Press.

It's actually footage from an August biker rally in Pretoria, South Africa, with participants kneeling to pray while protesting against attacks on farmers in the region.

The original TikTok video with the incorrect caption was widely shared on the internet, including by the Trump War Room, the official account for the president's campaign.

• Bob Oswald is a veteran Chicago-area journalist and former news editor of the Elgin Courier-News. Contact him at

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