2

Say a Justice is barely hanging on to her life. Can a president nominate and the Senate confirm a Justice in anticipation of their death? Do they have to wait until the person dies? Can't it be a conditional (conditional on joining the court in the event of the death) pick dependent upon the Justice passing? Seems to be a time saver.

  • 12
    This would be incredibly disrespectful to the sitting justice, and I imagine it would create enough political blowback that I cannot see any nominee supporting the effort. – jalynn2 Nov 13 '19 at 19:18

1 Answers1

9

Can a President nominate a US Supreme Court Justice in anticipation of a sitting Justice's demise?

First, Supreme Court Justices can only be removed by Death, Impeachment & Removal, or by Resigning. Therefore, as long as an ill Justice hasn't resigned and hasn't died, he or she is still part of the SCOTUS.

There is nothing in the constitution that speaks about replacement - temporarily or permanent - either.

As a result, if the "replacement" justice is formally nominated before the demise, technically he or she won't be a replacement but an additional member.

The number of Justices in the SCOTUS is not specified by the Constitution. However, it is determined by a law. See this answer.

So without changing the law, it is not possible to add a 10th Justice.

Summarizing the above:

No, it's not possible to formally nominate and confirm a replacement Justice before the current one has died or resigned.

Of course, the president can publicly name someone that he intends to nominate as soon as the current justice demises. And the Senate is free to discuss anything, including this person.

But after the actual death, there will still be a formal nomination and a formal confirmation. And the president and senate are no way bound to do whatever they announced. So I don't think this will be done in practice.

That said, every president has a short-list just in case a justice unexpectedly dies. This short-list is the closest thing to what you are looking for at the moment.

As @hszmv pointed out in a comment, Trump released a list of candidates he was considering for the nomination on the Supreme Court as part of his 2016 campaign and of the two seats he has replaced, both candidates were on this list.

(I couldn't find a link to this list. A quick internet search yielded mostly the lists provided by many lobbying organizations. If anyone has a link to the original list, feel free to add it in and remove this note)

Sjoerd
  • 5,370
  • 1
  • 21
  • 28
  • 2
    Your whole argument hinges on: Technically, the "replacement" won't be a replacement, but an additional member. This needs citation. –  Nov 13 '19 at 18:47
  • But I am not talking about replacement, but someone on hold. Preapproved, ready to go. Not talking about removing anyone's voting rights. –  Nov 13 '19 at 18:52
  • @KDog I've updated my answer to reflect the points you mentioned. – Sjoerd Nov 13 '19 at 19:14
  • While my gut, and precedence says you're likely right, I think this needs better sourcing to the actual scenario. –  Nov 13 '19 at 19:16
  • 3
    @KDog Unfortunately, there's no citation available to provide better references - one can't cite a non-existent source. There is no restriction in the Constitution regarding the number of Supreme Court justices, else there never would have been efforts over the years to "pack" the Supreme Court. – Just Me Nov 13 '19 at 19:43
  • 1
    @KDog: Trump released a list of candidates he was considering for the nomination on the Supreme Court as part of his 2016 campaign and of the two seats he has replaced, both candidates were on this list. To my knowledge, the remaining candidates are all still on the list and there have been on new additions to replace the two appointed Justices. – hszmv Nov 13 '19 at 20:18
  • @JustMe: Wikipedia sites the power of the legislature to make laws governing the number of Justices is derived from Article I, Section 3, clause 6 (establishes position of Chief Justice), Article I, Section 8 powers to create inferior courts and Article III, Section 1 powers given to congress to create inferior courts, and Article III Section II powers of Congress to strip the Supreme Court of appellant jurisdiction. Combined they allow congress to create positions inferior to Chief Justice including associates, who Chief Justice is typically seen as first among equals. – hszmv Nov 13 '19 at 20:33
  • @hszmv I've added your note on the 2016 campaign short list to the answer. If anyone has a link, feel free to edit it in. – Sjoerd Nov 15 '19 at 03:54
  • "As a result, if the 'replacement' justice is formally nominated before the demise, technically he or she won't be a replacement but an additional member": This is incorrect. Nomination to the supreme court does not make someone a member of the court; only appointment does. If the nomination is made and approved while there are 9 justices on the court but the appointment does not occur until there is a vacancy, then there would never be 10 members of the court. – phoog Nov 15 '19 at 23:21
  • @KDog this answer is incorrect, because it relies as you note in your first comment on an incorrect assumption, which seems to be based on a misunderstanding of the technicalities of the process of nomination, approval, and appointment. Also, it's precedent, not precedence. – phoog Nov 15 '19 at 23:25
  • @Sjoerd: One other point out that I can't believe I didn't list, but administrations prior to Trump (All of Trumps justices were from a list developed with the help of a conservative think tank) but often if the President nominates someone to an open seat in the United States Court of Appeals for the District of Columbia Circuit, which is generally considered to be the next most prestigious court in the United States after SCOTUS, it generally signals that the President may tap that person to be a Justice on SCOTUS at a later date (4 current Justices and Scallia were justices in this court). – hszmv Nov 18 '19 at 14:37