DANIEL VAUGHAN: OLC, Biden open new phase of judicial nomination fights

A few weeks ago, the Senate wrapped up its hearings regarding President Biden’s Supreme Court nominee, Ketanji Brown Jackson. At the time, I wrote that the hearings didn’t matter that much because the vote was already decided, and people should look to how the hearings impacted Democratic nominees.

While the overarching point is still correct, there appears to be more to that nomination. The Department of Justice’s Office of Legal Counsel (OLC), which issues legal opinions to the Executive Branch on various legal questions, issued a statement related to the Brown-Jackson nomination.

The question OLC got asked was, “whether the President may prospectively appoint Judge Ketanji Brown Jackson as an Associate Justice of the Supreme Court upon the Senate’s providing the President notification of the confirmation, even though the actual vacancy in the office of Associate Justice is not expected to occur until the Court rises for the summer recess this year.”

When does a Justice become a Justice?

The question matters because Justice Breyer is still on the Supreme Court. Supreme Court Justices are nominated for life and only replaced if they retire, die, or get impeached. And while Breyer has announced retirement, it doesn’t go into effect until the end of the term.

The OLC explores the idea that President Biden can hand a prospective justice their commission to be a justice, despite the opening not technically existing. This situation may seem like a highly technical question. Still, it matters, and it could introduce a new wrinkle in the judicial nomination wars in Congress.

Long story short, here’s the OLC’s conclusion:

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.

The OLC says that “three steps are required for completion of the appointment of a Senate-confirmed officer: first, presidential nomination; second, Senate advice and consent; and third, presidential appointment.”

In Jackson’s case, she’s had the first two steps occur. The OLC opinion concerns the third step: can the President hand out a commission without an actual vacancy?

The OLC is saying the President can take these actions. The restriction is that a President’s nomination is only good for his term. A President can’t nominate someone and force his successor to take that nominee if the vacancy is still open.

The politics of prospective nominations.

Beyond the legal technicalities involved, it’s an odd question. Biden could very easily wait until the end of the term, hand Jackson her commission after Breyer officially retires, and there would be no question. Ed Whelan at National Review noted this too:

Why Biden would have any interest in prospectively appointing Jackson, rather than in issuing her a commission once Breyer retires, is puzzling. What is gained by doing so? Why create a situation that would cast aspersions on the validity of her appointment?

It would seem an easy matter to coordinate with Breyer so that Biden’s issuance of the commission occurred immediately after Breyer’s retirement. It is in any event unlikely that any important matter at the Court would be decided in the short interval between his retirement and Jackson’s filling his seat.

Whelan is right. While this is an interesting legal rabbit trail to chase, it practically doesn’t make much sense. What is Biden’s rush?

Here, I think you have to make two assumptions. First, the OLC opinion is dated April 6, 2022. We don’t know when OLC received the request. Still, other than the Jackson hearings, the only other Supreme Court headlines were Clarence Thomas’s hospitalization—dated March 20, 2022.

Could the White House be thinking about a Thomas replacement? It’s also possible the White House is concerned about the potential incapacitation of Biden when he wouldn’t be able to fulfill the final step of the nomination process (death or mental incapacity). 

The Thomas angle is interesting because the OLC opinion says, “prospective appointments are permissible for vacancies anticipated to occur…” The phrase “anticipated to occur” is a vague phrase that could mean anything in the hands of a competent attorney.

How the OLC reshapes nomination fights.

There’s little question that Republicans are highly likely to retake the House and Senate after the midterm elections. If Biden wants to get a nominee through, the time is now, not the future. While the OLC opinion is about Jackson’s nomination, the White House could be exploring filling a prospective Supreme Court nomination for the next two years when Biden won’t hold the Senate.

The way it would work is Biden announces a prospective nomination for the Supreme Court, takes all the steps, but lacks a vacancy. The triggering event would be a vacancy on the Supreme Court over the next two years.

If that occurs with Republicans primed to block a nominee, Biden would already have a nominee passed through the Senate, ready with a commission.

If that’s what the OLC opinion is arguing, it opens a whole new arena in the judicial nomination fights. Future Presidents would front-load all their nominees when their party holds Congress, and nothing happens in the off-times.

It’s unclear where this is all heading, but that’s the real political scenario that the OLC has opened for the Executive Branch. There are potential issues here with some of the oldest Supreme Court precedence, Marbury v. Madison.

But the political logic is straightforward: Presidents should load up on nominations when they hold Congress, not when the vacancies exist. That logic would reshape nomination fights across the government.