Sen. Mike Lee probably could vote to confirm himself to the Supreme Court should the opportunity arise, according to experts on Senate rules and constitutional law.
The scenario is possible. The Utah Republican, a former assistant U.S. attorney and clerk to future Supreme Court Justice Samuel Alito, is on President Trump’s list of candidates for the Supreme Court seat opened up by Justice Anthony Kennedy’s retirement, which was announced Wednesday.
With Republicans down to just 51 votes in the Senate, it’s even possible that Lee could cast the deciding vote on his own nomination.
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The maneuver would be without precedent. Yet it probably would be allowed, because it isn’t clearly prohibited.
“There’s nothing in the rules that preclude them from voting for themselves — obviously, if they want to,” said Bill Hoagland, a senior vice president at the Bipartisan Policy Center who served for decades as a top Senate aide.
The most related precedent was Trump’s nomination of sitting Alabama Republican Sen. Jeff Sessions to serve as attorney general. Democrats argued that, as a nominee to the Cabinet, Sessions should recuse himself from voting on nominations, on the grounds that it would present a conflict of interest to have him voting on appointees he would be serving beside.
But Sessions did vote on Trump’s nominees right up until the day of his own confirmation vote. Then, he voted “present” on his own nomination.
The appearance of such a conflict would be the biggest obstacle to Lee or another senator voting for his own confirmation.
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“I think a senator could, but it might be better to recuse [because] of the conflict of interest,” said Carl Tobias, a professor of law at the University of Richmond in Virginia who specializes in federal judicial selection.
Asked if Lee would vote for himself, a spokesman called the question “a little premature,” adding that the senator trusts Trump to choose a nominee and that “we will address other questions once we know who the nominee is.”
Six sitting senators have been appointed to the Supreme Court. Setting aside the nomination of Oliver Ellsworth in 1796, all but one have been were confirmed by voice vote, obviating the need for the candidates to cast a vote. Hugo Black, a Franklin D. Roosevelt nominee, did not vote when the Senate confirmed him 63-16 in 1937.
But the era of voice votes or overwhelming majority votes for Supreme Court nominees is over. Instead, it’s much more likely that a vote could come down to just a handful of senators or even Vice President Mike Pence casting the deciding vote.
That prospect suggests the decline of politics, suggested Paul Schiff Berman, a professor at George Washington University Law School. “The fact that we’re even in that kind of a setting suggests that there’s already a problem with our democracy,” he said.
Yet there is precedent for a senator voting on sending himself to higher office. In 1868, Sen. Benjamin Franklin Wade of Ohio voted on the impeachment of President Andrew Johnson, even though, as president pro tempore of the Senate, he was in line to succeed Johnson. Impeachment fell short by one vote.
