The Office of Legal Counsel in the Justice Department made public today an opinion dated April 6, 2022—the day before the Senate’s confirmation of Judge Ketanji Brown Jackson’s nomination to replace Justice Breyer—that advises President Biden that he may, upon her confirmation, “prospectively appoint” her as an associate justice, “even though the actual vacancy in the office of Associate Justice is not expected to occur until the Court rises for the summer recess this year.”
I offer some initial thoughts on (1) what the OLC opinion says and means, (2) whether it is sound, (3) what Biden has in fact done, and (4) why Biden would have any interest in prospectively appointing Jackson.
(1) What does the OLC opinion say and mean?
Let me make clear at the outset that OLC has not opined that a prospective appointment of Jackson by Biden would make her an associate justice before Breyer retires from (or otherwise vacates) his office. On the contrary, OLC is speaking only to how a president might complete his role in the appointment process. What OLC is saying is that the president may complete that role by making a “prospective appointment”—an appointment, as I understand it, that does not take effect, in the essential sense of enabling the appointed person to occupy the office, until some future date or event (in Jackson’s case, a vacancy arising in Breyer’s seat).
OLC specifically states:
The completion of the appointment, however, does not mean that Judge Jackson assumes the office of Associate Justice. Rather, her entry on the duties of the office remains contingent on Justice Breyer’s resignation becoming effective.
I find the word “assumes” in the first sentence to be vague. In the context of the opinion, I understand the first sentence to mean: “The completion of the [president’s act of] appointment, however, would not mean that Judge Jackson is then entitled to the office of Associate Justice.”
OLC also limits its advice on prospective-appointment authority by reciting its previously articulated position that “prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office.” It does not actually say that prospective appointments would be impermissible for vacancies that are not anticipated to occur during the appointing official’s own term of office, but that would seem to be the clear implication of its analysis.
OLC also does not address the question of what a commission must say in order to constitute a prospective appointment. As I have pointed out, the standard language for a judicial commission purports to confer immediate authority. So it would seem odd to use the same language for a prospective appointment.
(2) Is the OLC opinion sound?
As a former principal deputy in (and at times acting head of) OLC, I will attest to the widely recognized reality that OLC has a strong institutional bias in favor of presidential power.
That said, I hadn’t recalled the opinion by then-Assistant Attorney General William H. Rehnquist that the new OLC opinion invokes as precedent. Nor had I been aware of the three previous instances of prospective appointments of justices and judges (in 1869, 1922, and 1962) that the OLC opinion cites (pp. 4-5). These seem weighty. But I haven’t been able to locate the Rehnquist opinion and thus haven’t reviewed it, and OLC says in its opinion that it has not had the time needed to be “able to verify the accuracy of all the dates” for those instances. [Update: The now-public Rehnquist memo has nothing to do with the matter of prospective appointments. It is very strange that the new OLC opinion prominently miscites it as OLC precedent on the matter.]
More broadly, I wonder whether the OLC position contradicts Marbury v. Madison (1803). In that landmark opinion, Chief Justice Marshall states that once the president has made the appointment, “[t]he right to the office is then in the person appointed.” (Emphasis in original.) By OLC’s account, a prospective appointment by Biden would not confer on Jackson an immediate “right to the office.” Rather, her right to future “entry on the duties of the office remains contingent on Justice Breyer’s resignation becoming effective.”
It’s possible, to be sure, that Marshall in Marbury could be said to have just been addressing the ordinary case in which a president appoints a judge to an existing vacancy. It’s also possible that he was wrong. But OLC’s failure to address the point leaves the question unresolved.
(3) What has Biden done?
We don’t know for certain whether Biden has issued a commission to Jackson. The Federal Judicial Center’s confused account of Jackson’s status would suggest that the Department of Justice’s Office of Legal Policy informed it that Biden issued a commission to her on April 8.
If Biden did issue a commission, we don’t know what it says. We don’t know in particular whether it purports to confer immediate authority on Jackson (in which case it might well be a nullity even if OLC’s advice about his ability to make a prospective appointment is correct).
It would be good for the White House to make a copy of the commission public.
(4) Why would Biden prospectively appoint Jackson?
Why Biden would have any interest in prospectively appointing Jackson, rather than in issuing her a commission once Breyer retires, is puzzling. What is gained by doing so? Why create a situation that would cast aspersions on the validity of her appointment?
It would seem an easy matter to coordinate with Breyer so that Biden’s issuance of the commission occurred immediately after Breyer’s retirement. It is in any event unlikely that any important matter at the Court would be decided in the short interval between his retirement and Jackson’s filling his seat.
The OLC opinion oddly asserts that a prospective appointment would “bring[] to an end the President’s and the Senate’s role in the process” and “would render the Senate’s consent final.” But was the White House really concerned that the Senate might have any “role in the process” after it confirmed Jackson’s nomination or that the Senate’s consent didn’t then become “final”? I don’t understand the basis for any such concerns. I don’t understand the basis for any such concerns. [Update (7:30 p.m.): The Rehnquist memo has just been made public, and it discusses the concern that that a motion for reconsideration in the Senate might lead to the rejection of a previously confirmed nomination. It further states: “It is well-established that the Senate loses its power to reconsider a nomination, if the President issues a commission to the appointee before the Senate acts on the motion.” So I now believe that Biden issued a commission to Jackson on April 8 in order to prevent any possibility of a successful motion for reconsideration, including in the event that Republicans regained control of the Senate any time before Breyer’s retirement.]