The Catch-22 might exist if O’Connor’s resignation were effective upon her successor’s “appointment”. But because it’s effective upon her successor’s confirmation–an act that precedes and is discrete from appointment–there’s no problem. A vacancy is needed for an appointment, but not for a nomination.
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About the Author
Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center and is a regular contributor to National Review’s Bench Memos blog.
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