Bench Memos

Law & the Courts

An End to KBJ Appointment Follies?

I’m pleased to take note that the Federal Judicial Center’s bio page for Judge Ketanji Brown Jackson no longer mistakenly identifies her as already being an “Associate Justice, Supreme Court of the United States” and no longer states that she “received commission on April 8, 2022.” (In case the bio page changes yet again before Justice Breyer retires, here’s a preserved image of how it now reads.)

I hope that this means that President Biden hasn’t actually purported to issue her a commission. As I’ve explained, any such commission would be a nullity, as Biden needs to wait until the seat to which Jackson has been nominated—Breyer’s seat—is vacant before he can appoint Jackson to it. (And even if a commission before then were somehow possible on some sort of theory of a delayed effective date, Jackson obviously couldn’t become an associate justice in place of Breyer while Breyer continues to occupy his position.)

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