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

Last week the Senate confirmed Judge Ketanji brown Jackson to a U.S. Supreme Court seat. It was then questioned whether President Trump could appoint Jackson, even though Justice Stephen Breyer still holds the High Court seat.

The Office of Legal Counsel, Department of Justice has just released a memo to address this issue. This memo, entitled “Authority for the President to Prospectively Appoint Supreme Court Justice,” was signed April 6 by Christopher Schroeder. It suggests that presidents can appoint confirmed nominations to vacant seats.


The Office believes that potential appointments for vacant positions anticipated during an official’s term are allowed. . . . In keeping with our view, we believe that Judge Jackson’s confirmation by the Senate would mean that the President could sign the Supreme Court commission she was appointed to before Justice Breyer resigns. Judge Jackson, however will not assume the position of Associate Justice until Justice Breyer has resigned. . . . She would take the Constitutional and Statutory oaths once he has resigned.

The memo was not prompted only by the confirmation hearing of Judge Jackson. However, it would have wider implications. The memo would suggest that President Jackson could nominate another Supreme Court nominee and Senate could confirm him in advance of another vacancy in his term. This could be in response to a possible vacancy in the future, after Senate control has been transferred.

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However,. . . A vacancy is not created before the Justice retires. We have known for a long time that the President can nominate to fill this vacancy. . . . Prospective nominations are now common for anticipated Supreme Court vacancies. Twelve people have been prospectively nominated to the Supreme Court since 1986, including Judge Jackson.

It has been also acknowledged that the Senate can give its approval and consent after it gives their advice.[t]He President has the authority to make future appointments to any office that begins after January 20, [of the year his term ends].” . . . A “general rule” is that a potential appointment to fill an office vacancy certain to happen in public offices, made by an officer with authority.[]. . . is given the power to fill any vacancy that arises. . . . The President couldn’t “forestall” the rights and prerogatives [his]Your successors through the appointment of successors for office expiring after [his]”The power to appoint is already expired.” . .  But, there are no restrictions on the power of the President to make appointments prior to an event.
impending vacancy.

These memos cite a variety of examples that involve nomination, confirmation and appointment to fill vacant vacancies. This could be when a justice or judge announces his or her intention to resign. It is unclear if the Senate Democrats and the Biden Administration would try to extend this practice in order to nominate candidates for vacant seats that have been “anticipated”, but in a loosest sense. They also confirm judges in “just in case” those seats are vacated later in President Biden’s term.

Perhaps, however, with the sheer number of open vacancies in the White House, it may find that there is not enough time for the White House to start thinking about nominating or appointing candidates to these vacancies.