There are also several important matters that the OLC opinion fails to address. Given the evident rush in which the opinion was issued, this is perhaps understandable. But the gaps present some troubling questions about how the OLC advice might operate in practice.
Numbering serially from my Part 1 post:
3. In observing (correctly, in my view) that the president may make “prospective nominations” for “anticipated vacancies on the Supreme Court,” OLC does not clarify the bounds of an anticipated vacancy, nor does it address whether the president may make prospective nominations for vacancies that fall outside the bounds of what is “anticipated.”
In its 1968 opinion, OLC stated:
It should be noted that anticipated vacancies [for judicial or executive-branch positions] may be grouped into two categories: First, those that will take effect on a day certain; e.g., when a resignation is submitted as of a specific date, or a statutory term is about to expire. Second, those that will take effect upon fulfillment of a condition; e.g., when the removal or elevation of the incumbent takes effect, or the appointment and qualification of his successor. Nothing in the Constitution prevents advance nomination and confirmation to fill either category of anticipated vacancies.
This statement might well be read to imply that the Constitution prevents “advance nomination” for a future vacancy that falls outside of these two categories. But, alternatively, it might simply be that the settled practice of a president’s making advance nominations only for these two categories of anticipated vacancies reflects a sensible accommodation of the institutional interests of the president and the Senate—an accommodation that a president and a compliant Senate might choose to depart from.
4. In advising that “prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office,” OLC does not explicitly state that prospective appointments are not permissible for vacancies that are anticipated to occur after the president’s current term of office. Is that in fact OLC’s position? And, if so, what are the constraints on anticipating a vacancy?
These questions interact in important ways with the question whether a president may make an advance nomination to a vacancy that falls outside the two categories of anticipated vacancies in item 3. Might a president, for example, assess that a particular justice seems to be in poor health, nominate a successor to that justice’s position, and, upon the Senate’s confirmation of that nomination, prospectively appoint the successor?
5. What happens if the president makes a prospective appointment to a vacancy but the vacancy does not actually occur during the president’s current term of office? Assume, for example, that Justice Breyer changes his mind and decides not to retire. Does Breyer’s prospective appointment of Jackson to the Breyer vacancy expire on January 20, 2025? Or does it remain potent, ready to spring into full operation whenever Breyer does vacate his seat?
On the one hand, the OLC opinion’s core conclusion that Biden, by making a prospective appointment of Jackson, would complete his role in the appointment process makes it puzzling to think that his appointment would somehow expire when his term ends. If that were the case, the Supreme Court could have dismissed Marbury v. Madison on the ground that Marbury’s failure to accept President Adams’s appointment while Adams was still president meant that the appointment expired when Thomas Jefferson took office. I am not aware of any precedent that an unaccepted appointment expires when the appointing president’s term expires.
On the other hand, the OLC opinion embraces the proposition that the president “could not ‘forestall the rights and prerogatives of [his] own successors by appointing successors to offices expiring after [his] power to appoint has itself expired.’” So this proposition would seem to mean that Biden’s prospective appointment of Jackson would expire on January 20, 2025 (at least if Biden is not elected to a second term). Or does it mean that Biden would “forestall the rights and prerogatives” only if he made a prospective appointment to a vacancy that he did not anticipate would occur during his term?
Depending on how this and the preceding questions are answered, a president might be able to make a batch of nominations to, say, the next ten or twenty associate-justice vacancies that will occur, have a compliant Senate confirm those nominations, and then make prospective appointments that will spring into operation over a course of many years, with the appointed individuals filling new vacancies as associated justices whenever such vacancies arise.
6. If the OLC opinion is correct and Biden could make a prospective appointment of Jackson, how must such an appointment be worded?
As I have noted, when the president uses the conventional language of the judicial commission, he states that he thereby “authorize[s] and empower[]” the appointed judge “to execute and fulfil the duties” of the judicial office. Without some amendment, such language in a commission making a prospective appointment would seem to be lie and thus a nullity.
According to the 1968 OLC opinion, 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.
What does the commission that Biden has apparently issued Jackson actually say? And if it doesn’t similarly specify that it takes effect only upon Breyer’s retirement (or on a specific date that ends up being after Breyer’s retirement), is it nonetheless somehow valid?
* * *
As I have previously explained, it appears that Biden resorted to a prospective appointment of Jackson in order to try to foreclose the farfetched possibility that the Senate might somehow adopt a motion to reconsider its confirmation of Jackson. When Breyer does retire, Biden should issue Jackson a second commission in order to eliminate any question over the legitimacy of her appointment as an associate justice.