Dershowitz: Constitutional Law Is ‘Very Clear’ that Trump and Senate Have the Power to Nominate, Confirm Justice

By Craig Bannister | September 21, 2020 | 2:33pm EDT
Constitutional Scholar Alan Dershowitz
(Getty Images/Lior Mizrahi)

Constitutional Scholar Alan Dershowitz says “it’s very clear” that the president has the authority to nominate a replacement for deceased Supreme Court Justice Ruth Bader Ginsburg and that the Senate has the power to confirm that nominee – as well as to refuse to confirm, as it did in 2016 when President Barack Obama nominated Merrick Garland.

In a Twitter video addressing the heated controversy over whether President Donald Trump has the authority to nominate, and the Senate has the power to confirm, a justice so close to an election, Dershowitz says there’s no doubt that they can:

“It’s very clear, as a matter of Constitutional law - and that’s where my expertise lies - the president has the power to do it and the Senate has the power to confirm. But, the Senate also has the power to refuse to confirm. It exercised that power in 2016.”



Because Republicans hold such a slim minority in the Senate, Dershowitz said it’s “going to be up to a handful of Republican senators” to determine what becomes of the president’s nomination.

“There’s nothing legal or constitutional. It’ll be a matter of public opinion,” Dershowitz concluded, adding that election considerations may well be the determining factor for some senators:

“It’ll be a matter of whether senators voting are considering their election. Whether or not they think they will benefit.”

Democrats have threatened to “pack the court” by adding additional Supreme Court justices if Trump succeeds in getting his nominee confirmed. But, the public has rejected that ploy in past and would do so again this time, Dershowitz said:

“I don’t think the public would accept that. They certainly didn’t when Franklin Delano Roosevelt tried it, proposed it, back in the late 1930’s.”

“I suspect that, if the Democrats tried to do it, if they did win both the presidency and the Senate, it would also be rejected in the court of public opinion.”

Dershowitz said that the role of the Supreme Court is to be a non-partisan arbiter. And, in that spirit, he called on Pres. Trump and all senators of both parties to “put principle over partisanship”:

“Look, the main issue is to keep the Supreme Court an institution that is neutral, non-partisan, objective, above politics – and that can serve as an effective check and balance on the other two branches of government.”

“This is a very critical time for American Democracy, for the Supreme Court.

“I have only one strong word of advice for all the senators, particularly Republican senators, but Democratic senators, as well: put principle over partisanship.

“Put the interests of the country over the interests of party. Put the interests of the Supreme Court of the United States as an objective institution over the temporary interests of one particular party.

“Will it happen? Unlikely.”


“So, please, Mr. President, senators: please, do the right thing. Do what you do based on principle, not on partisanship. And, may the United States Supreme Court go from strength to strength.”

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