Yes, it is possible for a sitting vice president to be nominated to the Supreme Court

On Jan. 27, Supreme Court Justice Stephen Breyer officially announced he was retiring from the bench. 

After the announcement, online users speculated that Biden might nominate Vice President Kamala Harris to fill the Supreme Court vacancy. 

This is not the first time there was speculation about Harris taking over an open chair on the bench. In November, CNN published a report about Vice President Kamala Harris’ performance in the White House and alleged rumors that  Biden was considering nominating Harris to the Supreme Court when a vacancy became available.

Using Crowdtangle, a public insights tool owned by Facebook, VERIFY found thousands of mentions of Harris and “Supreme Court” across Facebook and Twitter.

That prompted the VERIFY team to ask our sources if that’s possible.

THE QUESTION

Is it possible for a sitting vice president to be nominated to the U.S. Supreme Court?

THE SOURCES

• Erwin Chemerinsky, dean of the University of California at Berkeley School of Law
• Geoffrey Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago
• The 25th Amendment of the U.S. Constitution

THE ANSWER

Yes, it is possible, two law professors told VERIFY. But there hasn’t been a sitting or former vice president who has been nominated to the Supreme Court in U.S. history.

WHAT WE FOUND

Even though Kamala Harris is vice president, she could still be a potential Supreme Court nominee, experts tell VERIFY. 

There are very few restrictions on who can become a Supreme Court justice.

The Constitution lists no age or citizenship restrictions, and you don’t even have to practice law or have a law degree. The only restriction for being nominated to the Supreme Court is an impeachment and conviction that bars you from any federal office.

In an email to VERIFY, Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, said, "I do not see any impediment to a sitting vice president being nominated for the Supreme Court."

Geoffrey Stone, law professor at the University of Chicago, added that if a sitting vice president were confirmed to the Supreme Court they would have to resign as vice president. 

Section 2 of the 25th Amendment states if there is a vacancy in the office of the vice president, the president would nominate a new vice president, who then would take office upon confirmation by a majority vote of both Houses of Congress.

According to records from the U.S. House and Senate, neither a sitting vice president nor a past vice president has been nominated to the Supreme Court. 

Only one former president has been nominated to the Supreme Court. That was William Taft in 1921. John Quincy Adams was nominated before he was elected president and declined the appointment.

So we can verify, yes, it is possible for a sitting vice president to be nominated to the U.S. Supreme Court. 

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