On further review, the Office of Legal Counsel’s opinion on President Biden’s purported authority to “prospectively appoint” Judge Ketanji Brown Jackson to the Supreme Court is much worse than I first thought.
In a post on Friday evening, I offered some initial doubts about the soundness of OLC’s advice that Biden could, in the immediate aftermath of the Senate’s confirmation of Jackson’s nomination, complete his role in the appointment process by issuing a commission to Jackson that would take effect when Justice Breyer retires. In this post and a follow-on, I will expand my critique of the OLC opinion. (I won’t reiterate here my argument that the OLC opinion contradicts a passage in Marbury v. Madison, and I instead refer interested readers to point 2 of that previous post.)
To be clear, while I am very skeptical of OLC’s bottom line, I am not contending here that it is clearly wrong. I am instead maintaining that the reasoning in the OLC opinion is deeply defective and unpersuasive.
1. The OLC opinion prominently asserts:
Our Office has taken the position that prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office. See Memorandum for Harlington Wood, Jr., Associate Deputy Attorney General, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Delay in Induction of Judge into Office Following His Confirmation by the Senate (Nov. 27, 1970) (“Rehnquist Memorandum”).
To my surprise, it turns out that that assertion is blatantly wrong.
The Rehnquist Memorandum that OLC cites was made public on Friday evening. As its title indicates, it addresses whether two United States Attorneys who had been “recently confirmed by the Senate to be district judges” could have “their ascension to the bench … delayed” so that they could complete their “work[] on important criminal prosecutions.” President Nixon had issued a judicial commission to one of the two confirmed nominees but not to the other. Both nominations involved newly created seats, not seats still occupied by an incumbent.
The Rehnquist Memorandum not only does not advise on the matter of prospective appointments. It does not even offer a word in passing on the matter. So I do not see how OLC can defend citing the Rehnquist Memorandum (and only the Rehnquist Memorandum) as support for the proposition that OLC “has taken the position that prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office.” (I also don’t see how anything in the Rehnquist Memorandum provides even implicit support for that position.)
A cynic might suspect that OLC is trying to hide behind Rehnquist’s conservative bona fides to deflect scrutiny of its position.
2. The OLC opinion also asserts:
The Office [OLC] has previously noted that historical practice supports the President’s authority to make prospective appointments of judicial officers, including an Associate Justice of the Supreme Court.
This assertion is also false. The opinion cites two previous opinions in support of this assertion. Let’s start with the second one, the Rehnquist Memorandum. Again, there is not a sentence in the Rehnquist Memorandum that “noted that historical practice supports the President’s authority to make prospective appointments of judicial officers” or that even had anything remotely to do with the matter. The new opinion claims that the Rehnquist Memorandum “discussed” one instance of such an appointment, but as its own account reveals, the instance instead involved “a judicial officer [who] ha[d] been appointed many months before taking the oath and entering on the duties of the office.” In other words, rather than involving a prospective appointment, it involved an ordinary immediate act of appointment by the president and the confirmed nominee’s delay in accepting the appointment.
The other previous OLC opinion that the new opinion cites is a 1968 opinion on the power of President Johnson to nominate Abe Fortas to be chief justice (which is available as an attachment, pp. 154-169, to a 1979 opinion). Here too, the subject matter of the opinion has nothing to do with prospective appointments. It instead concerns the president’s power to make a nomination to a seat that is not yet vacant. It therefore bears instead on the (to my mind, uncontroversial) point that Biden had the power to nominate Jackson to Breyer’s seat.
OLC states that the 1968 opinion “provided several examples of judges who were appointed by the President prior to the effective date of the outgoing official’s resignation.” That statement is correct, as several can mean three. And those examples do appear to provide support for the proposition that presidents have made prospective appointments before, including to the position of associate justice.
But I do not think that it is correct to contend that the 1968 opinion “noted that historical practice supports the President’s authority to make prospective appointments.” Rather, the 1968 opinion compiled the data on these and other judicial appointments and lumped them all together as examples of nominations “in advance of the effective date of the resignation or retirement of the incumbent.” The 1968 opinion seems to take no particular note of, and certainly does not offer any comment on the issues raised by, the three instances that also happen to involve prospective appointments.
It’s also worth noting that each of those three instances involved the incumbent’s commitment to retire upon a specific date (that’s true of both of the associate-justice instances) or condition. By contrast, Breyer stated in January only that he “intend[ed]” his retirement decision to take effect at the end of the Court’s term, and he hedged even that mere statement of intention on the “assum[ption] that by then my successor has been nominated and confirmed.”
And of course there is the broader question whether previous actions by presidents provide meaningful evidence that a practice is constitutionally permissible or show instead that presidents sometimes acted unconstitutionally.
(I will note that the OLC opinion also cites a 1960 OLC opinion that apparently deals with “prospective appointments” to some fixed-term executive-branch offices. That opinion does not appear to be publicly available, and if it in fact provides meaningful support for the new OLC opinion, it would be odd that the new OLC opinion so badly misuses the Rehnquist Memorandum and the 1968 opinion.)