It may have happened before, but if so, I’m unaware of it. Judge Ketanji Brown Jackson has now been confirmed by the Senate as a Supreme Court justice, but there’s a problem. The justice she would replace, Breyer, has yet to retire. He announced he would at the end of the term and there’s no reason to believe he won’t. But what if he changes his mind?
As Ed Whelan noted, the process for the appointment of a Supreme Court justice involves three distinct steps: Nomination, confirmation and appointment. KBJ has passed the first two, but the third won’t happen until the president signs off on her appointment, and that can’t happen until there is a vacancy. Until then, KBJ remains a judge of the D.C. Circuit.
This raises some issues. Breyer could change his mind and not retire. No one can make him. Sure, it would be awkward, and is extremely unlikely, but that doesn’t change the fact that it is a theoretical possibility. And if he changed his mind, what would that mean for KBJ?
Judge Jackson would continue in her current position on the circuit, primed for appointment but unappointed. Should the Senate change hands at the midterms, there would be no change in her status as she has already been confirmed and there is no mechanism to unconfirm. But what if Breyer remained in his position as associate justice until a new president took office? Would the new president be bound to appoint Judge Jackson? Nope. The final step in the process, appointment, is at the discretion of the president after confirmation by the Senate. The president could change his mind or, if a new president, just say no. There is no duty to appoint someone just because they’ve been confirmed.
But this raises yet another interesting possibility, since KBJ has been cofirnmed by the Senate despite there being no vacancy as yet for her to fill. Why can’t the Senate confirm a bench of Supreme Court justices in advance so that they can be appointed immediately upon the opening of a seat?
(2 of 4): I think that it's entirely legal; see OLC opinions to that effect. It could be part of orderly politics–each president and Senate could, as time and other priorities permit, build this roster and then not have to worry about handling nominations unexpectedly.
— John Q. Barrett (@JohnQBarrett) April 7, 2022
This would have the advantage of removing the confirmation process from the front burner, with all the ugliness, nastiness, demagoguery and deceit that the current dog and pony show promotes. After all, if there’s a roster of potential justices in the wings, without any assurance they’ll ever actually be appointed and no emergent situation such as the death of a justice to focus attention on the job, would people aside from nerds and activists care?
But then, would that oblige a president to pick from the back bench when an opening occurred? What if nominees were confirmed under one president and another took office who preferred her own choices?
As noted above, there final step in the process, appointment, always leaves open the possibility that a president could decide, “Nah, never mind,” and leave a nominee hanging. Perhaps a scandal arises in the interim and the president who nominated the justice decides the person is no longer the best choice? In the past, this wasn’t a serious concern since there was no hiatus between confirmation and appointment, so little opportunity for the nomination to blow up (again). But a few months between confirmation and appointment could make all the difference. Not to suggest anything will happen, but it could.
As for the nominees sitting on the Group W confirmation bench, the president would still be under no duty to pick from one of his own nominees, one of the pre-confirmed, if he decides otherwise. And certainly no future president would be under such a duty, although she could well do so if the nominees were suitable to her. The only thing needed would be for the president to decide not to appoint, not to perform the final step in the process, and the nominee would simply never take a seat at the big bench.
John Q properly notes that there would need to be a separate bench for the Chief Justice, as it’s a distinct position required by the Constitution, although there’s no reason a CJ-in-waiting couldn’t be confirmed as well, even if it would be, as he says, “a separate bullpen.”
Could there be a roster of “legal stars” that meet the approval of a broader cohort of the nation so that the partisanship of the moment is quelled to the extent possible? There could, indeed, and it would come at little cost since there would be no duty to appoint a justice from the bench. Is it likely to happen? Would we want it to happen? That’s a very different matter.
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