Now that Judge Ketanji Brown Jackson’s nomination to the Supreme Court has been confirmed, the question whether Justice Breyer has actually announced a decision to retire is only of academic interest. Perhaps the only respect in which it theoretically matters at this point is that if Breyer has not made such an announcement, then it’s clear that he could reverse his mere stated intention. (Whether he could retract an actual announcement is arguably more complicated.)
But the theoretical question whether Breyer could decide not to retire has sparked some discussion of what would happen to Judge Jackson’s nomination in that event. I think that the answer is clear: Jackson having been confirmed to replace Breyer, President Biden (or any subsequent president) could appoint her to replace Breyer when Breyer does vacate the seat.
But a law professor or two on Twitter have contended (even if tentatively) that Biden could appoint Jackson to any other vacancy that arises in a seat of an associate justice. The argument, as I understand it, is that because each of the associate justices occupies the same statutory office, the Senate’s confirmation of Jackson to be an associate justice enables Biden to appoint her to any associate-justice seat.
Let me briefly explain why I believe this argument is clearly wrong:
1. Biden specifically nominated Jackson to fill Breyer’s seat: “I nominate Ketanji Brown Jackson, of the District of Columbia, to be an Associate Justice of the Supreme Court of the United States, vice Stephen G. Breyer, retiring.” (The term vice means “in place of.”) The Senate acted on, and confirmed, that nomination. That is therefore the only appointment that Biden could make of Jackson (without, that is, going through the whole nomination and confirmation process again).
2. It’s no accident that the president and the Senate have worked out a practice in which the president typically makes vice judicial nominations. That practice strikes an important balance of power between the president and the Senate.
To illustrate the point: Federal appellate judgeships are the same statutory office in the same way that associate-justice positions are. Or, if you’re disposed to dispute that point, federal appellate judgeships on the same court of appeals surely are.
If a vice nomination did not specify the seat to which a president could appoint a confirmed nominee, a president could nominate someone to a judgeship on, say, the Tenth Circuit and then, after Senate confirmation, appoint that same person to a judgeship on the D.C. Circuit. Or a president could nominate someone to replace a Ninth Circuit judge in Oregon and then, after Senate confirmation, appoint that same person to replace a Ninth Circuit judge in California.
3. To be clear: I am not contending here that the Constitution itself would bar the president from making a generic nomination to an associate-justice position or to a federal appellate judgeship. I am arguing, rather, that (a) the Constitution allows the president and the Senate to adopt a practice in which the president nominates someone only for a specific position and the Senate confirms that nomination only for that specific position, and (b) vice nominations embody that practice.
I will add that I have consulted with several people who are very experienced in the appointment process, some of whom have a strong disposition in favor of executive authority, and all agree with me on this matter. If there is anyone experienced in the appointment process who takes a different view, I’ve missed it.
The issue, I’ll note, would be of particular salience if, say, a vacancy were to arise before the Court’s argument session later this month. (There is no reason that I am aware of that anyone would anticipate such a vacancy.)