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The media is reporting that Justice Stephen Breyer plans to retire at the end of this year's court term.

Senate Majority Leader Chuck Schumer issued the following statement regarding the confirmation process.

President Biden’s Supreme Court nominee will receive a prompt hearing in the Senate Judiciary Committee and be considered and confirmed by the full United States Senate with all deliberate speed.

So, since Justice Breyer has not officially retired from the court, can the Senate confirm a President's nominee at this point of time?

Can the Senate confirm any federal judges or Cabinet positions when the incumbent has not vacated the position, for that matter?

If so, what's stopping the Senate from erroneously confirming judiciary nominees for seats that aren't vacant?

Rick Smith
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    It is worth noting that, in his letter to President Biden, Justice Breyer states "I intend [my retirement] to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed." So, at least Breyer himself is under the impression that the Senate can confirm his successor before he vacates his seat. – acvill Jan 28 '22 at 21:46
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    @acvill That alone made me want to ask much the same question as OP. – zibadawa timmy Jan 29 '22 at 03:56
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    A confirmation for a seat that isn't vacant wouldn't be erroneous. After the confirmation, the president has to actually appoint the person to the post, which is the only thing that cannot take effect while the post is occupied by someone else. – phoog Jan 29 '22 at 22:43

2 Answers2

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Yes - in 1994 the 103rd Congress voted to confirm President Bill Clinton's nomination of Stephen G. Breyer to replace Harry A. Blackmun. The nomination was received in the Senate on May 17th, and the 87-9 confirmation vote was held on July 29th. However, Blackmun didn't leave the bench until August 3rd.

In answer to your questions regarding whether the Senate can confirm other federal judges/Cabinet positions without a vacancy, it's perhaps helpful to examine the text of the nomination:

Stephen G. Breyer, of Massachusetts, to be an Associate Justice of the Supreme Court of the United States, vice Harry A. Blackmun.

The form of the confirmation is such that it will only come into force once the specified vacancy exists - this is also the case for other federal judges & other positions requiring Senate confirmations. As to what is stopping the Senate from erroneously confirming judiciary nominees for seats that aren't vacant - the final steps in the process are set out in the CRS report Supreme Court Appointment Process: Senate Debate and Confirmation Vote:

If the Senate votes to confirm the nomination, the Secretary of the Senate then attests to a resolution of confirmation and transmits it to the White House. In turn, the President signs a document, called a commission, officially appointing the individual to the Court. Next, the signed commission “is returned to the Justice Department for engraving the date of appointment (determined by the actual day the president signs the commission) and for the signature of the attorney general and the placing of the Justice Department seal.” The department then arranges for expedited delivery of the commission document to the new appointee.

Once the President has signed the commission, the incoming Justice may be sworn into office.

This commission may not be signed and the individual appointed to the Court before the vacancy exists, avoiding the possibility of replacement nominees being lined up for non-existent vacancies such that they cannot be withdrawn by an incoming President; the next President would simply refuse to sign the commission.

CDJB
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    Those halcyon days when a SCOTUS appointee could get an 87-9 vote to confirm! – JohnFx Jan 27 '22 at 17:29
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    There's a certain irony to having this discussion about the replacement for Justice Stephen Breyer with him being the example for the answer. – Davidw Jan 28 '22 at 03:55
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    If I understand correctly, that seems to suggest that the current Democratic President/Senate could preemptively confirm nominees to hedge against losing the Senate, right? e.g. in the Obama presidency, it sounds like they could have preemptively confirmed Garland or even someone more left-leaning. (putting aside how this would look politically) – blah Jan 28 '22 at 05:47
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    @blah as far as I can tell, there's no rule against that, no, aside from the political consequences you mentioned. I don't believe resolutions of confirmation expire at the end of a congressional session. – CDJB Jan 28 '22 at 09:01
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    @Davidw Even more irony - the chair of the senate judiciary committee which recommended Breyer was... Joe Biden. – CDJB Jan 28 '22 at 09:41
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    @JohnFx: The problem is that the Supreme Court has managed to convince people to accept an unfounded leap of logic from "The Supreme Court's job is to say what the Constitution means" and its corollary "If the Supreme Court, while properly exercising its duties, says the Constitution means X, then the Constitution means X", to "If the Supreme Court says the Constitution means X, then X is the Supreme Law of the Land". The correct statement should be "If the Supreme Court says X, but X would be contrary to the Supreme Law of the Land, then the Court has failed in its duties". – supercat Jan 28 '22 at 19:09
  • @JohnFx: Do you want those days back? Are you willing to pay the price? – Joshua Jan 28 '22 at 20:53
  • @Joshua Yes. I don't consider it a bad thing that Justices might be considered on the merits vs who nominated them. – JohnFx Jan 29 '22 at 02:03
  • @JohnFx: Things have gone very far. It may become necessary to return judicial review to the jury box in civil cases. But if both sides could live with a tenth amendment ruling on abortion we might be able to salvage the situation on that; otherwise the pressure to appoint justices based on that cause will be too great. – Joshua Jan 29 '22 at 02:07
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    "The form of the confirmation is such that it will only come into force once the specified vacancy exists": no, the form of the nomination is such that it concerns an appointment that will only be made once the specified vacancy exists. The form of the confirmation is always identical: "Will the Senate advise and consent to this nomination?" – phoog Jan 29 '22 at 23:25
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Schumer's statement isn't really about making up some new procedure. He's telling his fellow Democratic senators that Republicans are going to try to stall this thing out in hopes it goes beyond July (when Breyer retires), maybe later, and maybe never happens. McConnell was famous for that stuff as minority leader during Obama/Biden. Schumer is saying the plan is to have the new judge in by July 1st (roughly -- Breyer is retiring at the end of the session, which goes through June), confirmations already take a long time, and if a Republican senator asks you "hey, I might vote for your gal if you add this step that takes a week or two", tell them no -- it's a trick that Democrats fell for for 8 years, and we're not getting fooled anymore.

Here's an MSNBC summary of a McConnell radio interview about how he kept Merrick Garland from getting on the court, allowing Trump to appoint Gorsuch, and his plans to repeat it:

McConnell told radio host Hugh Hewitt last year that he regards that obstruction as “the single most consequential thing I’ve done in my time as majority leader of the Senate.” And he suggested that he’d do the same for any potential vacant seat in 2024 if the GOP were to reclaim the majority after the midterms.

Schumer is saying that talk about waiting to start until the actual retirement (at the end of June), or Susan Collin's statement Thursday that the Amy Coney Barrett confirmation was so fast that we need to slow this one down, or McConnell's suggestion Wednesday that we need to negotiate for a mainstream appointee... he's saying all of that is bad-faith stalling. In the Senate you're not allowed to say anything even remotely disrespectful about another senator. I read "with all deliberate speed" as senate-speak for "with ACB you set the rules for a fast hearing by completely ignoring the other party -- that's what we're doing".

As far as pre-confirming for future vacancies, the next President would ignore it. The President selects nominees and Congress can't tell her how to do her job. That's basic separation of powers. However the pre-confirmation bill was worded, that's what it would come down to. It would be easier to just expand the court, and currently no one wants to do even that.

Alex
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Owen Reynolds
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  • Nice answer. As to pre-confirming nominees, I think @blah's idea was as a hedge against losing the Senate, not the Presidency. So there would be a few pre-confirmed candidates who the President could nominate and and place on the court without further Senate action, assuming the Republicans took back the Senate and McConnell refused to move any nominees forward. No idea if this is legal (it doesn't seem like it would be) but I think that's what they were suggesting. – divibisan Jan 28 '22 at 22:28
  • @divibisan Maybe that was it, probably, but there are so many permutations one can't address them all. A resolution? Changing Senate rules? Some new weird type of bill? Or does the president get a confirmation coupon with a blank spot for the name? No matter how "clever", I think it can't get around pre-confirmation being stupid and not-a-thing and no-one going along with it (which is how high-level politics works). – Owen Reynolds Jan 29 '22 at 01:49
  • Can’t argue with that. – divibisan Jan 29 '22 at 02:39
  • @divibisan Any act of Congress (not yet signed or defaulted into law) expires at the end of each 2 year instantiation of Congress, becoming invalid. If the appointment/bill/whatever isn't signed or otherwise defaulted into validity before the end of that Congress, it is no longer valid even if then signed, and the new Congress and the current President would have to go through the process again. That's how things like pocket vetoes work. – zibadawa timmy Jan 29 '22 at 04:07
  • Schumer is just stating the obvious, McConnell knows he doesn't have much chance to stop this unless Biden nominates someone so far Left he loses people like Manchin and Sinema . – deep64blue Jan 29 '22 at 08:41
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    @AlanDev But it's the opposite of obvious. The normal thing Obama/Biden did was negotiate when they didn't "have to" to get a bipartisan consensus, which always turned out to be a waste of time. It's tough to add all of the context to answers, but I think I can fit that in. – Owen Reynolds Jan 29 '22 at 17:31
  • @zibadawatimmy The OP may be imagining a bill actually passed by both houses and signed, reading "Bob Smith counts as confirmed" or something. Or a change in Senate rules, or some special binding resolution, or a special "senate bill" which you and I have never heard of but exists. It's kind of a "can't prove a negative" situation. – Owen Reynolds Jan 29 '22 at 17:38
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    @zibadawatimmy you're thinking about the rules that apply to acts of congress. Senate confirmation is not an act of congress. There's no "defaulting into validity," for example, and the appointment of the justice is a presidential act, not a congressional act. – phoog Jan 29 '22 at 23:20
  • @phoog Appointment is a presidential act, advice and consent is a Congressional/Senate act which expires with each new Congress and is constitutionally required for someone to become a Justice. When a new Senate convenes, the previous one ceases to exist and the advice and consent is required of the current Senate. – zibadawa timmy Jan 30 '22 at 03:14
  • @zibadawatimmy The constitution only says "congress" creates the courts. If doesn't say the President appoints or that only the Senate confirms (and not the House). For that matter, it doesn't mention confirmation. I assume these are traditions, but written down where? By the constitution it seems congress could say "we let the president appoint judges, but now we're revoking it". – Owen Reynolds Jan 30 '22 at 05:00
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    @OwenReynolds It very much does say that the President appoints, with advice and consent from the Senate. And not just Justices, but all public officers, federal judges, etc. The House is very explicitly not involved. – zibadawa timmy Jan 30 '22 at 05:03
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    @zibadawatimmy your inference that the senate's advice and consent expires at the end of the term is unfounded. A bill that hasn't passed congress by the end of the term is unfinished business of congress, and congress could adopt rules continuing unfinished business of the previous congress if it wanted to. Bills that have passed congress and been sent to the president are dealt with explicitly in the constitution. A vote of advice and consent, however, is not unfinished business. Of course, in practice the question is unlikely to arise as president will appoint the justice immediately. – phoog Jan 30 '22 at 09:22
  • @phoog There are existing SCOTUS precedents putting expiration dates at the end of the current congress. Imprisoning someone under their contempt powers cannot last beyond that Congress, unless perhaps the subsequent Congress (quickly) decides to continue it. And there's a difference between "let's create new rules and then we proceed with those rules from step 1 (which conveniently lets us skip some old steps)" and "the rules are the same, we must abide by them and start everything from step 1 regardless of whether it was at step 3,537 yesterday in the prior Congress". – zibadawa timmy Jan 30 '22 at 14:54
  • Perhaps amusingly, Marbury v. Madison presented an almost perfect opportunity to test this specific instance, but Marshall took a third option and gave us judicial review, instead. So insofar as I don't think there's any specific precedent precisely about this, you're right. But I think there's precedents around neighboring, similar issues (and contempt imprisonment is even a single-chamber issue) that support the expiry upon new Congress. – zibadawa timmy Jan 30 '22 at 14:56
  • @zibadawatimmy the point, though, is that once the senate votes to confirm, the matter is out of the senate's hands. The same is not true for any of your examples. It looks as though Howell Edmunds Jackson was appointed after the final adjournment of the senate that confirmed him, though I haven't found the relevant congressional record online to verify that. I also haven't found any evidence that this was seen as constitutionally questionable or that anyone in the next congress attempted to treat his appointment as a recess appointment. – phoog Jan 30 '22 at 15:06
  • @phoog That's an interesting example that could very well be in your favor, yes. – zibadawa timmy Jan 30 '22 at 15:10
  • @phoog But for what it's worth, a contempt imprisonment is in principle also out of the hands of the chamber: "X shall be imprisoned for 5 years, unless he complies" is clear and definitive (well, technically it perhaps needs to be less glib, but that's the gist), and the chamber in question could always just declare "nah, he can go free now" later if they change their mind. But yet SCOTUS said that's not good enough, you can't imprison past the life of the Congress that imprisoned him. Howell still seems a likely stronger point in your favor, but just wanted to mention it. – zibadawa timmy Jan 30 '22 at 15:22
  • @zibadawatimmy do contempt imprisonments typically have a specified duration? I was under the impression that the purpose is coercive, so the imprisonment is indefinite and the imprisoned can achieve their freedom by complying. Do you have any citations for relevant precedents? I'd be curious to read a few. – phoog Jan 30 '22 at 15:39