As I spelled out yesterday, President Biden nominated Judge Ketanji Brown Jackson “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. Therefore, Biden may appoint Jackson to Breyer’s seat once that seat is vacant—which according to Breyer’s stated plans will be at the end of the Court’s term in late June or early July. Any purported act of appointment made before the seat is vacant would be null.
So I was very surprised to discover yesterday that the Federal Judicial Center’s bio page for Judge Ketanji Brown Jackson identified her as “Associate Justice, Supreme Court of the United States” and stated that she “received commission on April 8, 2022” (the day after her Senate confirmation). How, I wondered, could the Federal Judicial Center, “the education and research agency for the federal courts,” mess up something so simple?
Things got even worse when the Federal Judicial Center added this explanatory note yesterday evening:
Judge Jackson has been appointed to the Supreme Court of the United States as an Associate Justice but will not begin to exercise the duties of the office until the seat to which she has been appointed is vacant.
The FJC apparently believes that both Jackson and Breyer are now associate justices, despite the fact that Jackson was nominated to replace Breyer. It also apparently believes that the Court now has nine associate justices, as well as the Chief Justice, in violation of 28 U.S.C. § 1 (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices….”) At the same time, it continues to list Jackson as a D.C. Circuit judge.
It’s no answer to say, as the FJC does, that Jackson “will not begin to exercise the duties of the office until the seat to which she has been appointed is vacant.” She can’t be appointed to that seat until it is vacant. (And if she already occupies it, then it won’t become vacant until she resigns—which just illustrates the absurdity of the FJC’s gobbledygook.)
I had assumed that someone at the FJC somehow confused the White House ceremony for Jackson on April 8 with an actual commissioning. But it turns out that it might be even worse than that. I’m reliably informed that the FJC says that its misinformation on Jackson reflects what the Department of Justice’s Office of Legal Policy is telling it.
Set aside why an agency of the judicial branch would mindlessly regurgitate what someone in the executive branch tells it. Is it really the case that DOJ’s Office of Legal Policy has told the FJC that Jackson has received her commission? Does that mean that Biden has actually purported to execute a commission for Jackson—a commission that would be a nullity? Absent further evidence, I refuse to accept that the White House has been so incompetent on such an elementary matter.