The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Judicial Nominations

May the President Prospectively Appoint a Supreme Court Justice to a Seat that Is Not Yet Vacant? (Updated)

A newly released memo from the Office of Legal Counsel suggests the answer is "yes."


Last week, the Senate confirmed Judge Ketanji Brown Jackson to a seat on the U.S. Supreme Court. This raised the question of whether the President could go ahead and appoint Jackson to the High Court, even though the seat for which she was nominated is still occupied by Justice Stephen Breyer.

A newly released memo from the Office of Legal Counsel in the Department of Justice addresses this question. The memo, "Authority of the President to Prospectively Appoint a Supreme Court Justice," is dated April 6, was signed by Assistant Attorney General Christopher Schroeder, and suggests presidents may appoint confirmed nominees to seats that are not-yet vacant.

From the memo:

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. . . . 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. . . . Once his resignation is effective, she would then take the oaths as prescribed by the Constitution and statute.

While prompted by the confirmation of Judge Jackson, the memo's logic would seem to have broader ramifications. Among other things, it would suggest the President could nominate, and the Senate could confirm, another nominee to the Supreme Court in anticipation of another vacancy later in President's term—a vacancy that might arise after control of the Senate has switched hands.

More from the memo:

Although . . . a vacancy does not arise until the effective date of the Justice's retirement, we have long recognized that the President may nominate in anticipation of such a vacancy. . . . Indeed, prospective nominations have become common with respect to anticipated vacancies on the Supreme Court. Since 1986, twelve individuals have been nominated prospectively to the Supreme Court, including Judge Jackson.

We have also recognized that, after the Senate provides its advice and consent, "[t]he President is authorized to make prospective appointments to any office the term of which begins before January 20 [of the year his term ends]." . . . As a "general rule," "a prospective appointment to fill a vacancy sure to occur in a public office, made by an officer who[]. . . is empowered to fill the vacancy when it arises, is, in the absence of a law forbidding it, a valid appointment, and vests title to the office in the appointee." . . . The President could not "forestall the rights and prerogatives of [his] own successors by appointing successors to offices expiring after [his] power to appoint has itself expired," . . .  but there is otherwise no general limitation on the President's authority to make appointments in advance of an impending vacancy.

The examples cited in the memo generally involve the nomination, confirmation, and appointment of individuals to fill pending vacancies, such as arise when a judge or justice announces when he or she will be stepping down. The interesting question is whether the Biden Administration and Senate Democrats would seek to stretch this practice to reach nominations for vacancies that are "anticipated" in only the loosest sense, and confirm judges "just in case" certain seats become vacant later during President Biden's term.

Then again, given the number of actual vacancies the White House has yet to fill, perhaps it won't have time to think about nominating and appointing people to vacancies that are, as of this point, still hypothetical.

UPDATE: At Bench Memos, Ed Whelan offers some thoughts on the OLC memo, and whether President Biden relied upon this memo to appoint Ketanji Brown Jackson anticipatorily to the Supreme Court.