Potential Twist: Breyer Wants Supreme Court Successor Confirmed Before Retirement Takes Effect

[mystery-ak]

Potential Twist: Breyer Wants Supreme Court Successor Confirmed Before Retirement Takes Effect
Martin Walsh January 27, 2022

A potential twist has emerged in Supreme Court Justice Stephen Breyer’s soon-to-be retirement from the bench.

Breyer officially notified Joe Biden of his intent to resign at the end of the court’s current term.

However, Breyer stated in a letter dated. Jan. 27 that he wants to have his successor lined up before he steps down.

“I am writing to tell you that I have decided to retire from regular active judicial service as an Associate Justice of the Supreme Court, and to serve under the provisions of 28 U.S.C. 371(b),” Breyer wrote, referring to the statute dealing with retired justices and their ability to continue collecting a salary.

“I intend this decision 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,” Breyer added in the letter.

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https://conservativebrief.com/potential-58716/

[Kamaji]

Doesn't seem to be anything necessarily against it in the Constitution.

[Wingnut]

He is a crafty old codger!..  I kinda like his style here.  If I'm reading it right he is signaling to both parties they better get their shit together and agree on a replacement that can pass senate or He ain't leaving.

[mountaineer]

Doesn't seem to be anything necessarily against it in the Constitution.

Except that there isn't a vacancy to fill until the seat is, you know, vacant. 

[Kamaji]

Except that there isn't a vacancy to fill until the seat is, you know, vacant. 

What I meant was that I see no impediment to his replacement being nominated and confirmed prior to the time that he in fact leaves the bench.  The replacement would not, of course, assume any judicial duties until that time, but the Constitution does not appear to require that the seat in fact be vacant prior to the time the president nominates a replacement, or prior to the time the Senate holds a confirmation vote.

[Kamaji]

He is a crafty old codger!..  I kinda like his style here.  If I'm reading it right he is signaling to both parties they better get their shit together and agree on a replacement that can pass senate or He ain't leaving.

That's entirely possible.  And that would be hopeful, because it means that there is additional pressure on the democrats to avoid going too far hardcore leftist with their nominee.  It means there is an increased likelihood that this will just be a standard lib-for-lib swap.

[mountaineer]

He is a crafty old codger!..  I kinda like his style here.  If I'm reading it right he is signaling to both parties they better get their shit together and agree on a replacement that can pass senate or He ain't leaving.

Hmm, that would be an interesting twist, wouldn't it?

[DefiantMassRINO]

They know that if this Supreme Court Nominee process drags into Summer, the Swamp Turtle will conjure a reason to delay the confirmation until the 2022 midterms winners are seated in the Senate.

[Fishrrman]

Kamaji:
"Doesn't seem to be anything necessarily against it in the Constitution."

There is no "vacancy" until Breyer has actually retired and vacated the seat.

How can the president nominate and the Senate confirm someone, when no vacancy yet exists...?

That would be like pre-nominating and confirming a successor to kamala sutra, while she is still a sitting vice president...

[Kamaji]

Kamaji:
"Doesn't seem to be anything necessarily against it in the Constitution."

There is no "vacancy" until Breyer has actually retired and vacated the seat.

How can the president nominate and the Senate confirm someone, when no vacancy yet exists...?

That would be like pre-nominating and confirming a successor to kamala sutra, while she is still a sitting vice president...

Because we know that a vacancy will exist.  Furthermore, the Constitution doesn't talk about vacancies.  The Constitution grants the president the appointment power in Article II, section 2, clause 2, and it reads as follows:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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, ....

(Emphasis mine).

The current statute governing the Supreme Court also does not specify a vacancy requirement for the appointment of Supreme Court justices.  The statute can be accessed here:  https://www.law.cornell.edu/uscode/text/28/part-I/chapter-1

Accordingly, there is nothing that would, as a matter of law, prevent the president from appointing, and the Senate from confirming, a person to be a justice of the Supreme Court to replace a retiring justice prior to the time that the retirement becomes effective.

[rustynail]

"confirming, a person to be a justice of the Supreme Court to replace a retiring justice prior to the time that the retirement becomes effective."......then why not confirm several so any upcoming vacancies would be covered?  A court in waiting.

[Kamaji]

"confirming, a person to be a justice of the Supreme Court to replace a retiring justice prior to the time that the retirement becomes effective."......then why not confirm several so any upcoming vacancies would be covered?  A court in waiting.

Why not?  There is nothing in the express language of the Constitution that would prohibit it, nor in the relevant statutes.

If you want to find limitations, you're going to have to go looking in the penumbras of the Constitution ....

[Fishrrman]

Kamaji:
"Why not?  There is nothing in the express language of the Constitution that would prohibit it, nor in the relevant statutes."

Comrade Kamaji, The Party would welcome you to join us.
You understand well how to twist the language of the law to suit your (and our) needs!

[Cyber Liberty]

"confirming, a person to be a justice of the Supreme Court to replace a retiring justice prior to the time that the retirement becomes effective."......then why not confirm several so any upcoming vacancies would be covered?  A court in waiting.

A good point, and that would be a brutal tactic to be employed if the Rats ever get to expand the Court.  This must be resisted.

[Kamaji]

Kamaji:
"Why not?  There is nothing in the express language of the Constitution that would prohibit it, nor in the relevant statutes."

Comrade Kamaji, The Party would welcome you to join us.
You understand well how to twist the language of the law to suit your (and our) needs!

Wow.  You really don't give a sh*t about the Constitution, do you?  Just apply it the way you want it to be applied, and the actual language be damned.

If you want the president to have to wait for an actual vacancy before nominating a replacement, you find it in the penumbras and emanations of the language that doesn't discuss vacancies at all.  Of course, when it comes to something like abortion, why, then emanations and penumbras are radically unconstitutional.  All that matters is what you subjectively want, not what the language of the Constitution says.

And you pretend to be anything other than a rank democrat/lib/prog.

[Hoodat]

Potential Twist: Breyer Wants Supreme Court Successor Confirmed Before Retirement Takes Effect

Uh, no.  That's not how it works.  You either trust Biden to name a qualified replacement, or you don't.

[Kamaji]

Uh, no.  That's not how it works.  You either trust Biden to name a qualified replacement, or you don't.

And you know that because ....?

[Hoodat]

What I meant was that I see no impediment to his replacement being nominated and confirmed prior to the time that he in fact leaves the bench.  The replacement would not, of course, assume any judicial duties until that time, but the Constitution does not appear to require that the seat in fact be vacant prior to the time the president nominates a replacement, or prior to the time the Senate holds a confirmation vote.

The number of Supreme Court Justices is set by law at nine.  To raise the number of Justices to ten would require the consent of both houses of Congress and the signature of the President.  A scenario where Breyer stays on until his replacement is confirmed would effectively add a tenth Justice since Breyer would still be a Justice when the new one was confirmed.  In addition, there is no guarantee Breyer would step down.

So from a purely legal standpoint, Breyer must resign before a new one can receive a confirmation vote.

[Kamaji]

The number of Supreme Court Justices is set by law at nine.  To raise the number of Justices to ten would require the consent of both houses of Congress and the signature of the President.  A scenario where Breyer stays on until his replacement is confirmed would effectively add a tenth Justice since Breyer would still be a Justice when the new one was confirmed.  In addition, there is no guarantee Breyer would step down.

So from a purely legal standpoint, Breyer must resign before a new one can receive a confirmation vote.

Nope.  The only limit the number of justices imposed is that a confirmed nominee cannot be seated on the court until there is a vacancy.  There is no explicit legal bar to having a nominee confirmed prior to that point. 

So, unless we are going to start to argue on the basis of penumbras and emanations from the text, please point to a written provision of the Constitution that by its express terms imposes a vacancy limitation on the presidents power to appoint. 

Good luck.

[Bigun]

I hope the Senate fights over this for as long as possible!    

[Hoodat]

Nope.  The only limit the number of justices imposed . . . .

The limit on number of Justices was not imposed by the Justices themselves.  Again, it was an act of Congress.

April 10, 1869

CHAP. XXII. - An Act to amend the Judicial System of the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Supreme Court of the United States shall hereafter consist of the Chief Justice of the United. States and eight associate justices, any six of whom shall constitute a quorum.

https://tile.loc.gov/storage-services/service/ll/llsl//llsl-c41/llsl-c41.pdf

. . . . is that a confirmed nominee cannot be seated on the court until there is a vacancy.  There is no explicit legal bar to having a nominee confirmed prior to that point.

There will not be a vacancy as long as Breyer remains on the court.  And once a nominee is confirmed by the Senate, that nominee becomes a Justice at that moment.  No additional "seating" qualification exists.

So, unless we are going to start to argue on the basis of penumbras and emanations from the text

Such as your made up 'seating qualification'?  For it is you who is offering the premise here that a Senate-confirmed Justice doesn't actually become a justice until they are "seated".

please point to a written provision of the Constitution that by its express terms imposes a vacancy limitation on the presidents power to appoint.

The President can appoint (i.e. nominate) whoever he/she chooses.  But for the Senate to confirm a nominee when there are already nine Justices on the Court would be a violation of law. (See above).

[Smokin Joe]

Except that there isn't a vacancy to fill until the seat is, you know, vacant. 

That's how I see it, too. They'd, in effect, be confirming a 10th Justice.

[Hoodat]

That's how I see it, too. They'd, in effect, be confirming a 10th Justice.

Exactly.  And that would violate the 1869 statute.

The only guarantee of Breyer resigning is Breyer resigning.

[Cyber Liberty]

The way my non-lawyer brain sees it, they can do everything except the actual floor vote to confirm.

[Fishrrman]

I'm thinking that McConnell won't permit this, but will instead use whatever tactics he can to prevent a confirmation vote until Breyer's resignation is effective -- which will probably not be until mid-June.