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First Page

591

Last Page

694

Document Type

Article

Abstract

Appointments are about power—presidential power. There is no greater presidential appointment power than the power to appoint federal judges who are expected to serve for life. Judicial appointments allow the President to shape one branch of the federal government for decades to come, perhaps decisively, thereby helping to define his legacy. Of all judicial appointments, there is nothing more significant than appointments to the Supreme Court, if the President even has the opportunity during his term. But these appointments are the most difficult for the President to make in the most partisan political period in our lifetimes. May a President, with a Senate controlled by his party, “plan ahead” by nominating and confirming judges before actual judicial vacancies? There is no doubt that such “pre-appointments” would be politically astute for either political party: party control in the Senate can shift at midterm elections, and individual votes may change at any time. Why not take the political risk out of the Senate confirmation process when given the chance? But is this “hardball” constitutional? The answer is that it is perfectly constitutional, with one important constitutional limitation to mischief-making by the President and Senate. The President may nominate judges in advance of actual vacancies and the Senate may confirm judges in advance of actual vacancies; but the President may not complete judicial appointments by granting commissions to judges without actual vacancies. This answer has surprisingly important implications as to whether Justice Ketanji Brown Jackson’s appointment to the Supreme Court in advance of Justice Stephen Breyer’s retirement is constitutional. This answer also has broader implications for the role of the Senate, as the least partisan political institution, to take measures to prevent the abuse of presidential appointment power by any President.

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