Appointments that Are Incomplete When a New Congress Meets Either Lapse or Can Be Reconsidered by the Senate
Andrew Hyman
The Office of Legal Counsel, in the U.S. Department of Justice, issued an opinion on April 6 that is raising a lot of questions and criticisms. For instance, over at the blog Bench Memos, Ed Whelan has a two-part analysis (I and II) calling this OLC opinion “deeply defective.” The OLC opinion is titled “Authority of the President to Prospectively Appoint a Supreme Court Justice.” My reaction is summarized in the title of this blog post, which is at odds with the OLC opinion.
In the past, following confirmation by the Senate of a new judge to the Supreme Court, presidents have sometimes issued a commission before the seat is actually vacated, instead of following the usual practice of waiting until a vacancy occurs. Ed Whelan describes the two known instances:
President Grant’s commission of Edwin M. Stanton on December 20, 1869, specified that it would “take effect on or after February 1 [1870],” the date on which Justice Grier’s resignation would take effect, and President Harding’s commission on September 5, 1922, of George Sutherland to replace Justice Clarke likewise stated “commencing September 18, 1922,” the date on which Clarke’s resignation would take effect.
But what if the commission does not say when it will take effect? This problem would become acute when party control of the U.S. Senate changes, and the new Senate is potentially left helpless to do anything about the situation even though the vacancy has not even arisen yet. Apparently, the recent OLC opinion does not see this as a problem much less an acute one:
The President’s signing of [a judge’s] commission would complete her appointment, bringing to an end the President’s and the Senate’s role in the process.
This is an assertion that the Senate would have no role, nor would the President have any role, even if a mid-term election happens after the president signs the commission but before the vacancy actually arises. OLC mentions that a President cannot “forestall the rights and prerogatives of [his] own successors,” but that weak limitation makes OLC's theory internally inconsistent, because the President could resign in order to terminate a SCOTUS appointment before the vacancy occurs.
The natural inference from the Constitution is that the sequence for getting new people onto the Supreme Court generally should be as follows: (1) vacancy, (2) nomination, (3) consent of the Senate, (4) appointment, (5) commissioning, and (6) oath. But in actual practice, an exception has developed; as OLC explained in 1968 (emphasis added), “from the earliest years the Senate has exercised the power to confirm nominations to offices in which a vacancy in the near future is anticipated to take effect....” In such cases, the usual sequence may be modified so that, as President Kennedy explained in 1961, the "Court may not be handicapped for any time during which a vacancy might otherwise exist." The exception to the usual constitutional sequence ought to be limited to its legitimate purpose, rather than extended unnecessarily across national elections. Following an election, either the inchoate appointment must lapse, or else the Senate has every constitutional right and power to reconsider a nomination and withdraw its consent. After all, the Appointments Clause makes clear that an appointment can only happen “with” the consent of the Senate, so the Senate’s consent is needed throughout the appointment process, until the appointment actually takes effect.
For anyone seeking scholarship on this subject, I recommend this starting place: "Anticipated Judicial Vacancies and the Power to Nominate" by Matthew Madden, Virginia Law Review, Vol. 93, No. 4 (Jun., 2007), pp. 1135-1174. It's available on SSRN. Madden argues that "there is a vacancy prerequisite to the operation of the Appointments Clause that requires either an actual vacancy in the office to be filled, or a sufficiently definite and irrevocable anticipated vacancy in such an office." The recent resignation statement by Justice Breyer said he “intend[ed]” his retirement decision to take effect at the end of the Court’s term, but intentions can of course change.