Could the US Senate confirm a new supreme court justice during the lame-duck period? The Republicans are currently trying to confirm their candidate for the Supreme Court before the election. Today it was announced that the senate will be on break for a few days due to several corona cases. Suppose they do not get their candidate confirmed before election day. Could the senate confirm a candidate in the time period after the election but before the new senate is sworn in? Does this depend in any way on whether the results of the election are already known and on whether the president or the senate majority changes?
Yes. US Constitution, at Article two, Section two, provides that the President has the power to nominate the justices and appointments are made with the advice and consent of the Senate. There is nothing restricting the President from doing this on any particular day from beginning to end of his term, and also no restriction on when the Senate may give their advice and consent.
How would this scenario play out in the legal system? Prosecutor brings charges against EQM or tries to use that conviction to enhance a subsequent conviction. Defendant EQM raises the pardon as a defense. Prosecutor responds that the pardon was intended to cover EQM Prime, not EQM. The Court holds an evidentiary hearing to determine whether the President intended to pardon EQM Prime or EQM. The Court decides who the President intended to pardon based upon the evidence presented at the hearing, and rules accordingly. The burdens of proof are tricky. Usually affirmative defenses have a preponderance of the evidence burden on the proponent of the defense, but sometimes the defense must be disproved beyond a reasonable doubt. I don't know that part of the law well enough to know without lots of research and the outcome might not be uniform across the U.S. To my knowledge, there has never been a case that got this far in which the true identity of the beneficiary of the pardon was ambiguous. It is possible, but a vanishingly rare possibility. Almost always, someone gets a pardon by asking for it and determining whether EQM or EQM Prime asked resolves it, or a reference to the crime resolves it. If the Court concludes that both asked the same President to be pardoned for the same crime (e.g. if the same crime was committed jointly by father and by son who is named after father and doesn't use Jr. day to day) and the Court concludes that the President was probably confused and didn't realize that there were two requests from different people and not one, the judge would probably give them the benefit of the doubt and treat both as pardoned as that would still reflect the President's intent.
The first legal issue relates to the step where &quot;Those state legislatures refuse to allow any Electoral College slate to be certified until the 'national security' investigation is complete&quot;. The &quot;electoral voting&quot; law regarding voting of presidential electors is ARS 16-212. First, On the first Tuesday after the first Monday in November, 1956, and quadrennially thereafter, there shall be elected a number of presidential electors equal to the number of United States senators and representatives in Congress from this state. Second, After the secretary of state issues the statewide canvass containing the results of a presidential election, the presidential electors of this state shall cast their electoral college votes for the candidate for president and the candidate for vice president who jointly received the highest number of votes in this state as prescribed in the canvass. Finally, A presidential elector who knowingly refuses to cast that elector's electoral college vote as prescribed in subsection B of this section is no longer eligible to hold the office of presidential elector and that office is deemed and declared vacant by operation of law. The chairperson of the state committee of the political party represented by that elector shall appoint a person who is otherwise qualified to be a presidential elector. The replacement presidential elector shall cast the elector's electoral college vote as prescribed by this section. Notwithstanding section 16-344 and any other statute, the nomination paper and affidavit of qualification of the replacement presidential elector may be completed and filed with the secretary of state as soon as is practicable after the presidential elector's appointment. There is no provision for legislative &quot;certification&quot; and no authority to override the procedure set down in law. The appointment statute (344) gives sole discretion to the state party chairmen to appoint that party's electors: The chairman of the state committee of a political party that is qualified for representation on an official party ballot at the primary election and accorded a column on the general election ballot shall appoint candidates for the office of presidential elector equal to the number of United States senators and representatives in Congress from this state and shall file for each candidate with the secretary of state, not more than ten days after the primary election, by 5:00 p.m. on the last day for filing: Name, residence and postal address and an affadavit of residence in the state are needed. Again, there is no provision for &quot;certification&quot; by the state legislature. The certification that takes place is that the electors sign the presidential elector ballot certificate of vote, e.g. Arizona 2016, which simply notes that the electors have been &quot;duly elected&quot;. In general, Arizona law does not require &quot;certification&quot; of any election. Pennsylvania law on the election of electors (25 PS 2878) similarly does not give the legislature any veto power over the electoral process. The law on the voting of the electors also does not provide for any legislative intervention. This does not mean that the legislatures cannot pass an act ceremonially &quot;de-certifying&quot; or invalidating the 2020 election in general, or the nominations of one or both parties. Or, they could pass an act amending the election process to require legislative certification in the case of presidential electors. There is no realistic chance that such an act would be found legally sound, and is outside the scope of the existing Newsweek fantasy.
Most of the implications here are political, not legal. For that, you'd have to ask Politics.SE. The law, however, is quite clear: If the President is alive, and &quot;a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide&quot; do not invoke the 25th amendment, the President would remain President and just not do their job in this case. Congress could presumably provide for a different set of people to validate the President's disability status, but in your hypothetical, this wouldn't happen due to a lack of consent from the Senate. The 25th amendment was created to solve this problem: it is the only solution to it. If it is not used, then there is no other means to remove a disabled-but-alive President. Most (all?) executive agencies can run themselves perfectly well day-to-day without the President's help, so nothing would be likely to fall apart immediately. There wouldn't be anyone to appoint new judges or other presidentially appointed officers, which would probably eventually become a problem.
No In accordance with Article II Clause 3, once the votes are counted (and any deadlock resolved) the President has been chosen. At that point, the election is final.
A quick answer: your analogy isn't quite right. The Constitution gives the House "the sole power of impeachment." So unlike you, their work is never "going to court." No judge is ever going to look at the evidence they used and say, "You only used notes, not a final report. That isn't good enough, or admissible." A longer answer: impeachment is not a legal process. It is a political process. The only binding requirements are those found in the Constitution. These cover who can be impeached and tried, for what, how punished and by whom. All other matters of procedure are decided by each house. There are several sets of rules and precedents that cover impeachment. But if the House or Senate decides to ignore these rules and make up new rules, they can. After all, Article I of the Constitution gives each house "sole power" over impeachment and trial. It also gives each house the power to "determine the Rules of its Proceedings." You might ask, why, if impeachment is a political process, do so many people talk about it as if it was a legal process? The answer is simple: Both sides are busy trying to put their spin on what is going on in the House. If either side believes they will get more support by talking about impeachment in legal terms, that is how they will talk about it. But this spin should not hide the reality: impeachment is political. That impeachment is political does not mean that it should not be guided by the same values that guide legal processes. Of course, the hearings should be fair, the President should get due process, and so on. But because they are political, no court is going to step in and assure that they are fair. The only guarantee that the President will get a fair hearing and due process is also political. If enough Americans think he did not get treated fairly, or was denied due process, or what impeached unfairly, they can vote the Democrats out of office. Politics is the key to understanding much of what has gone on so far in the impeachment process. For instance, for a long time, Speaker Pelosi refused to hold a vote on whether to formally start impeachment proceedings. She offered a variety of explanations for this, but the truth was that she did not want to force Democrats from close districts to have to openly vote against the President. Similarly, Republicans, who wanted to force Democrats from close districts to vote against the President, argued that it was unfair, illegal or unconstitutional to have any hearings on impeachment without such a vote. Since there are more Democrats than Republicans in the House, Democrats got to decide when that vote was held. Of course, if the House does impeach, and the Senate has to try the President, since Republicans control the Senate, they will control the rules, etc.
The Twenty-fifth Amendment states: Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Thus, in the absence of a majority the candidate would be denied the office.
Although the constitution doesn't explicitly require your vote to be equal in strength, surely the founders intended with the word 'vote' that you at least get to choose who you vote for. Quite the contrary. The founders specifically intended that smaller states should have disproportionate strength - they knew exactly what they were doing. This was one of the major design goals of the Constitution and is reflected in several other areas (e.g. the structure of the Senate); the smaller states wouldn't have agreed to join the Union if such concessions hadn't been made. There's a general principle in law that "the specific overrides the general". You're not going to get anywhere by trying to read into the word "vote" when there is explicit text saying something different. If the founders intended the word "vote" to imply "equal power for everyone", then why would they have specified, in great detail, a system which does exactly the opposite? For that matter, the founders didn't particularly intend that the people be able to vote for president at all! Article II, Section 1 says only that "each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." There is no requirement that the state should hold an election to determine the appointment of the electors. According to Wikipedia, five states initially had the electors chosen by the state legislature, without having the people vote at all, and South Carolina continued to use this system until 1860. The 14th Amendment, section 2, appears to require that all eligible voters (male and 21 at the time, since modified by the 19th and 26th Amendments) be allowed to vote for their electors, but even there the wording is "any election" which appears to leave open the possibility of having no election at all. (It hasn't been tested as far as I know.) I think that your proposed lawsuit would be quickly dismissed, possibly as "frivolous".