Justice In Waiting? KBJ Commissioned

It was a mere week ago when it was noted that Judge Ketanji Brown Jackson was confirmed, but not yet appointed. A few days later, Ed Whelan (not a fan of KBJ) noticed on the Federal Judicial Center webpage that Judge Jackson was now listed as Justice Jackson, stating that she received her commission on April 8, 2022, the day after her confirmation, to the seat “vacated” by Justice Breyer.

What?

The assumption was that the first two steps of appointment were complete, nomination and confirmation, but the last step, commission, could not be completed until there was a vacancy for Judge Jackson to assume. Yet, here she was, commissioned as an associate justice of the Supreme Court when there was no vacancy yet. There should be, when and if Justice Breyer retires in June as he informed President Biden he intends to do, but until then, he holds his seat.

What if he changes his mind? He could do that if he chooses, as he has life tenure. People sometimes intend to do something in the future and then, when the time comes, decide not to. It could happen. More likely is that there could be a change of circumstances, say the death of another justice, which alters the situation so that retirement creates an unintended problem. That could happen too.

But mostly, the assumption was that it was one problem to confirm a new justice in anticipation of their being an opening, a prospective justice, and a very different problem if the President signs and dates the commission, which would seem to make the nominee a justice as of that moment. Right, President Madison?

Then came the piece of the puzzle that was as yet unknown. The Office of Legal Counsel at the Department of Justice issued a memo on April 6, the day before confirmation, that the President had the authority to appoint, meaning to complete the appointment process by signing the commission, prospectively.

Our Office has taken the position that prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office. See Memorandum for Harlington Wood, Jr., Associate Deputy Attorney General, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Delay in Induction of Judge into Office Following His Confirmation by the Senate (Nov. 27, 1970) (“Rehnquist Memorandum”). Consistent with this view, we conclude that, if the Senate votes to confirm Judge Jackson, the President may complete her appointment to the Supreme Court by signing her commission before Justice Breyer’s resignation takes effect. Judge Jackson will not, however, assume the office of Associate Justice until Justice Breyer’s resignation is effective.

Mind you, an opinion by OLC isn’t law, but it is controlling on the Executive branch’s conduct (for presidents who care about such things). It’s unclear whether President Biden has signed the commission yet, or what the commission says about when it becomes effective, but it now appears likely that the assumption that the final step of the process, the commission,  may well have been satisfied with the blessing of OLC even though there is no vacancy as yet to be filled.

This could all go as anticipated, and very likely will, with Justice Breyer retiring as intended and Justice Jackson thereupon taking his seat. But why did Biden not wait for the contingency to occur and then sign the commission? There is yet another concern in the gaming of the Court that should Breyer delay his resignation until after the midterm elections, the Senate with a Republican majority could revoke its consent and unconfirm KBJ. Is that possible? OLC seems to think so.

However, this new OLC opinion authorizing the president to complete the appointment process in advance of an “anticipated” opening during his term raises an entirely new opportunity for judicial shenanigans.

Here, Justice Breyer notified the President that he would retire upon the Court’s adjournment for summer recess in June or July of this year, assuming that his successor had been confirmed. See Breyer Resignation Letter. The anticipated date of the vacancy—approximately three months from now—is plainly within the President’s current term of office and consistent with the past exercises of prospective appointment authority cited above. The President, thus having appointment authority at the time the vacancy is expected to arise, may perform in advance the “last act” in the three-step appointment process set out in Marbury and appoint Judge Jackson as an Associate Justice, signified by his signing of her commission.

Seems fine, as far as it goes. But what if Breyer changes his mind and it turns out there is no vacancy during the remainder of Biden’s term? Or in the alternative, what if justices of one party send letters to the president of anticipated retirements within the president’s term so that he can prospectively nominate, confirm and commission them as Supreme Court justices contingent on the anticipated vacancy, and then they all decide, “Nah, I’ll stay a justice. Never mind”? Per the OLC memo, these would be commissioned justices who would merely be waiting for the seat to become vacant, but otherwise fully appointed.

But if justices did such a thing, would it be wrong, in bad faith, a nullity? Which Court would you go to for a ruling on that? And if justices are entitled to change their mind, and they are, then what would be wrong with their anticipatory announcement with that caveat?

Ed Whelan argues that President Biden obtained the OLC ruling authorizing the anticipatory commission of KBJ as a justice in order to avoid the outside possibility of the Senate revisiting its confirmation. After all, the Senate is only one heart attack away from changing sides. So Biden may have pushed forward to assure that Judge Jackson will be the next associate justice no matter what happens with the Senate or Justice Breyer. But this push opens the door to further mischief, should there be a president so inclined to exploit it.