Nominations for Prospective Vacancies on the Supreme Court ( 1986 )

Nominations for Prospective Vacancies on the Supreme Court
U nder A rticle □ , § 2, cl. 2 of the C onstitution, the appointm ent process for judges consists of
three steps: nom ination by the President, advice and consent o f the Senate, and appointment
by the President. A President may nominate, and the Senate may confirm, a person to an office
in anticipation that the office will be vacant during the President’s term o f office. Confirma­
tion w ithout appointm ent does n o t confer any rights on the nominee; the President remains
free to decide that he does not w ant to appoint a confirmed nominee. W hen the anticipated
vacancy does not arise, no appointm ent o f the confirm ed nominee is possible..
July 9, 1986
M em o ran d um O p in io n f o r t h e Attorn ey G eneral
This memorandum responds to your request for an opinion of this Office on
whether the President may nominate, and the Senate may confirm, individuals
for prospective vacancies on the Supreme Court. This issue arose in 1968 in
connection with President Johnson’s nominations of Justice Fortas to be Chief
Justice and Judge Homer Thomberry of the Fifth Circuit to be Associate
Justice. At that time, this Office prepared a legal opinion concluding that the
President has the power to nominate, and the Senate has the power to confirm,
in anticipation of a vacancy. See Department of Justice Memorandum re:
Power of the President to Nominate and of the Senate to Confirm Mr. Justice
Fortas to be Chief Justice and Judge Thomberry to be Associate Justice of the
Supreme Court (July 11, 1968) (1968 Justice Department Memorandum),
reprinted in Hearings before the Senate Comm, on the Judiciary, 90th Cong.,
2d Sess., App. Ex. 1 (1968) (Hearings). We believe that the analysis and
conclusion of the 1968 Justice Department Memorandum are still sound.
I. The Senate’s Consideration o f a Nominee for a Prospective
Vacancy is Consistent With the Appointments Clause
A prospective vacancy on the Supreme Court arises when a Justice an­
nounces his or her intention to retire on a specific date, or upon the qualifica­
tion of a successor.1 A prospective vacancy also arises when an incumbent
Justice is nominated for elevation to a higher position, i.e., to be Chief Justice.
In any of these instances, the President has the power to nominate, and the
128 U .S.C . § 371(b) provides in relev an t part that “ [t]he President shall appoint, by and with the consent o f
the Senate, a successor to a justice o r ju d g e who retires." This section does not prescribe the procedures or
tim etable fo r such appointments.
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Senate the power to confirm, in anticipation of the vacancy. This practice is
entirely consistent with the constitutional plan. In addition, it advances the
important goal of continuity in judicial administration.
Article II, § 2, cl. 2 of the Constitution provides that the President shall:
nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other Officers of
the United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law.
As explained in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 153-57 (1803),
the constitutional appointment process consists of three major steps: (1) the
nomination by the President; (2) the Senate’s advice and consent; and (3) the
appointment by the President, of which the appointee’s commission is merely
the evidence. Each step is essential to assumption of authority by the officer or
Justice, as the case may be. Id.2 Thus, as a constitutional matter, nothing
precludes the nomination and confirmation of a successor while the incumbent
still holds office. Confirmation does not confer any rights on the nominee; the
President remains free to decide that he does not want to make the appointment,
which is not legally completed until the execution of the commission. See, e.g.,
Memorandum for John D. Calhoun, Assistant Deputy Attorney General from
Robert Kramer, Assistant Attorney General, Office of Legal Counsel (Apr. 7,
1960).
This practical interpretation of the Constitution is supported by a line of
Supreme Court cases holding that appointment by and with the advice and
consent of the Senate of a successor to a removable officer has the effect of
displacing the incumbent. Wallace v. United States, 257 U.S. 541, 545 (1921);
Mullan v. United States, 140 U.S. 240, 245-46 (1891); McElrath v. United
States, 102 U.S. 426, 438-39 (1880); Blake v. United States, 103 U.S. 227,
236-37 (1880). In these cases, the Court assumed that the preliminary steps of
nomination and confirmation to an office may take place before the office is vacant
Consistent with this interpretation, the President may nominate, and the
Senate may confirm, a person to an office in anticipation that the incumbent
will be elevated to another office. If the Senate later fails to confirm the
incumbent for his new position, thereby preventing the creation of a vacancy,
the appointment, of course, cannot go forward. See Memorandum for the
2 See also 4 Op. A tt’y G en. 217, 2 1 9 -2 0 (1843):
The nom ination is not an appointm ent; nor is that nom ination followed by the signification o f the
advice and consent o f the Senate, that it should be made sufficient o f them selves to confer upon
a citizen an office under the constitution. They serve but to indicate the purpose of the President
to appoint and the consent o f the Senate that it should be effectuated. To give a public officer the
pow er to act as such, an appointm ent must be made in pursuance o f the previous nom ination and
advice and consent o f the Senate, the com m ission issued being the evidence that the purpose of
appointm ent signified by the nom ination has not been changed.
See also 12 Op. A tt’y Gen. 3 2 ,4 1 -4 2 (1866); 36 Op. A tt’y Gen. 382, 384-85 (1931).
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Acting Attorney General from Frank M. Wozencraft, Assistant Attorney Gen­
eral, Office of Legal Counsel (Oct. 25, 1966).3
mm. Historical Practice Supports the Nomination and Consideration of
Persons (For Prospective Vacancies
In 1968, this Office set forth in detail the historical practice up to that time
with regard to nominations o f judges and Justices for prospective vacancies.
For example, Justice Shiras submitted his resignation to take effect on February
24, 1903. On February 19, President Roosevelt nominated (a) Circuit Judge
Day to be Associate Justice of the Supreme Court, vice Justice Shiras; (b)
Solicitor General Richards to be Circuit Judge, vice Judge Day; and (c) Assis­
tant Attorney General Hoyt to be Solicitor General, vice Solicitor General
Richards. All three nominations were confirmed on February 23,1903, one day
prior to the effective date of Justice Shiras’ resignation. 34 Journal o f the
Executive Proceedings of the Senate, 202, 215 (hereinafter “JoumaP’). Simi­
larly, on June 2, 1941, Chief Justice Hughes announced that he would retire
from active service on July 1. 313 U.S. v (1941). On June 12, President
Franklin Roosevelt nominated Associate Justice Stone to be Chief Justice, and
Attorney General Robert H. Jackson “to be an Associate Justice of the Supreme
Court, in place of Harlan F. Stone, this day nominated to be Chief Justice of the
United States.” 87 Cong. Rec. 5097 (1941). The Senate confirmed Chief Justice
Stone’s nomination on June 27, and Associate Justice Jackson’s nomination on July
7,1941.314 U.S. iv (1941). See generally 1968 Justice Department Memorandum.
On several occasions since 1968, the President has simultaneously elevated a
sitting judge and nominated his replacement. For example, on December 11,
1974, President Ford nominated Judge William J. Bauer of the Northern
District of Illinois to replace Judge Otto Kemer on the Seventh Circuit. On the
same day, the President also nominated Alfred Kirkland to the seat vacated by
Judge Bauer’s elevation. 116 Journal at 805; see also 118 Journal at 592.4
Moreover, successors to district court judges who have been elevated to the
court of appeals have frequently been nominated while the Senate is still
considering the nomination o f the incumbent. On December 15, 1970, while
the Senate Judiciary Committee was considering the nomination of Judge
Wallace Kent to the Sixth Circuit, President Nixon nominated Albert Engel to
fill Judge Kent’s seat on the district court for the Western District of Michigan.
Judge Kent’s elevation was approved a few days later. 112 Journal at 680,682.
See also 118 Journal at 335, 534, 655.5
3 For exam ple, the Senate confirmed Judge Harold H. Greene to be C hief Judge of the District of Columbia CouTt
o f General Sessions, vice Judge John Lewis Smith, Jr., tw o days before it confirmed Judge Smith to be a District
Judge o f the U nited States District Court fo r the District o f Columbia. See 112 Cong. Rec. 27397,28086 (1966).
4 As an o th er exam ple, on August 26, 1976, President Ford nom inated John T. Copenhaver, Jr., vice Judge
K enneth H all, to the d istrict court for the Southern D istrict o f W est V irginia, and Judge Kenneth Kali, vice
Judge John Field, Jr., to the United States C o u rt o f A ppeals fo r the Fourth Circuit.
5 S im ilarly, on A ugust 4, 1976, President Ford nom inated John H. M oor II, vice Judge Peter Fay o f the
S outhern D istrict o f Florida, while the S en a te Judiciary C om m ittee was considering Judge F ay's elevation to
the Fifth C ircuit. B oth nom inees were ap p ro v ed by the C om m ittee a few days later.
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In the 1968 hearings on the nominations of Justice Fortas and Judge
Thomberry, Senator Ervin objected to the practice of nominating individuals
for vacancies that will not take effect until the qualification of a successor. He
argued that Chief Justice Warren had made his retirement contingent on the
Committee’s confirmation of Justice Fortas as his successor,6 and that, there­
fore, there was no vacancy for the Chief Justiceship.7 Senator Ervin apparently
believed that a vacancy occurs only upon the announcement that a Justice will
resign as of a date certain. See Hearings at 13, 16, 22-24.8 He expressed the
fear that if the President can nominate, and the Senate can confirm, a Justice in
the absence of an existing vacancy, the President and an “agreeable” Senate
could appoint Justices to take the place of any sitting Justice at such time as the
latter retired, resigned, or died. See Hearings at 15. To this concern, Attorney
General Clark responded that the Constitution permitted the President to make
nominations in anticipation of a specific vacancy, although not for positions
that will become vacant after his term of office expires. Id. at 15-16.
In our view, the President’s constitutional power to nominate Justices for
anticipated vacancies is limited only by his term of office. A President should
not be permitted, as a constitutional matter, to make a prospective nomination
for a vacancy that shall occur after his term of office expires because such a
power would encroach upon the appointment power of his successor. See
Memorandum for John D. Calhoun, Assistant Deputy Attorney General from
Robert Kramer, Assistant Attorney General, Office of Legal Counsel (Apr. 7,
1960) (citing state court cases). However, no such limitation exists, in the
absence of a specific statutory prohibition, where the President nominates an
individual for a vacancy which shall occur during his term of office.
Conclusion
For the above reasons, we perceive no constitutional impediment to nomina­
tion by the President, and confirmation by the Senate, of individuals for
anticipated vacancies on the Supreme Court which shall occur during the
President’s term of office.
C h a r l e s J. C o o p e r
Assistant Attorney General
Office o f Legal Counsel
6 President Johnson accepted C h ief Justice W arren 's retirem ent effective upon the confirm ation o f a
successor — not Justice Fortas in particular — although he subm itted the nom ination o f Justice Fortas to be
C hief Justice on the sam e day. 114 C ong. Rec. 18790 (1968). C h ief Justice W arren stated to the press th at he
w ould stay on as C h ief Justice if Justice Fortas w ere not confirm ed. Some Senators expressed concern that the
C hief Justice should not be given the pow er to determ ine his successor by conditioning his retirem ent upon
his successor's confirm ation. See H earings at 35.
7 Som e members o f the Com m ittee refused to question Judge Thom berry on the ground that there w as no
vacancy on the Court. See H earings a t 250-51. S enator Ervin, how ever, participated in the questioning. Id. at
256. W hen Justice Fortas’ nom ination to the C h ief Justiceship w as w ithdraw n in O ctober 1968, after the
Senate failed to end a filibuster preventing a vote on his elevation, the prospective vacancy for w hich
President Johnson had nom inated Judge Thom berry was eliminated.
8 No one on the Senate Judiciary Com m ittee in 1968 questioned the President’s pow er to nom inate in
anticipation o f a vacancy to occur on a date certain.
in