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OLC opinion on prospective appointment of KBJ is deeply defective, and more

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From NRO’s Bench Memos:

OLC Opinion on Prospective Appointment of KBJ Is Deeply Defective—Part 1

By ED WHELAN

April 18, 2022 12:25 PM

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.)

OLC Opinion on Prospective Appointment of KBJ Is Deeply Defective—Part 2

By ED WHELAN

April 18, 2022 12:56 PM

There are also several important matters that the OLC opinion fails to address. Given the evident rush in which the opinion was issued, this is perhaps understandable. But the gaps present some troubling questions about how the OLC advice might operate in practice.

Numbering serially from my Part 1 post:

3. In observing (correctly, in my view) that the president may make “prospective nominations” for “anticipated vacancies on the Supreme Court,” OLC does not clarify the bounds of an anticipated vacancy, nor does it address whether the president may make prospective nominations for vacancies that fall outside the bounds of what is “anticipated.”

In its 1968 opinion, OLC stated:

It should be noted that anticipated vacancies [for judicial or executive-branch positions] may be grouped into two categories: First, those that will take effect on a day certain; e.g., when a resignation is submitted as of a specific date, or a statutory term is about to expire. Second, those that will take effect upon fulfillment of a condition; e.g., when the removal or elevation of the incumbent takes effect, or the appointment and qualification of his successor. Nothing in the Constitution prevents advance nomination and confirmation to fill either category of anticipated vacancies.

This statement might well be read to imply that the Constitution prevents “advance nomination” for a future vacancy that falls outside of these two categories. But, alternatively, it might simply be that the settled practice of a president’s making advance nominations only for these two categories of anticipated vacancies reflects a sensible accommodation of the institutional interests of the president and the Senate—an accommodation that a president and a compliant Senate might choose to depart from.

4. In advising that “prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office,” OLC does not explicitly state that prospective appointments are not permissible for vacancies that are anticipated to occur after the president’s current term of office. Is that in fact OLC’s position? And, if so, what are the constraints on anticipating a vacancy?

These questions interact in important ways with the question whether a president may make an advance nomination to a vacancy that falls outside the two categories of anticipated vacancies in item 3. Might a president, for example, assess that a particular justice seems to be in poor health, nominate a successor to that justice’s position, and, upon the Senate’s confirmation of that nomination, prospectively appoint the successor?

5. What happens if the president makes a prospective appointment to a vacancy but the vacancy does not actually occur during the president’s current term of office? Assume, for example, that Justice Breyer changes his mind and decides not to retire. Does Breyer’s prospective appointment of Jackson to the Breyer vacancy expire on January 20, 2025? Or does it remain potent, ready to spring into full operation whenever Breyer does vacate his seat?

On the one hand, the OLC opinion’s core conclusion that Biden, by making a prospective appointment of Jackson, would complete his role in the appointment process makes it puzzling to think that his appointment would somehow expire when his term ends. If that were the case, the Supreme Court could have dismissed Marbury v. Madison on the ground that Marbury’s failure to accept President Adams’s appointment while Adams was still president meant that the appointment expired when Thomas Jefferson took office. I am not aware of any precedent that an unaccepted appointment expires when the appointing president’s term expires.

On the other hand, the OLC opinion embraces the proposition that the president “could not ‘forestall the rights and prerogatives of [his] own successors by appointing successors to offices expiring after [his] power to appoint has itself expired.’” So this proposition would seem to mean that Biden’s prospective appointment of Jackson would expire on January 20, 2025 (at least if Biden is not elected to a second term). Or does it mean that Biden would “forestall the rights and prerogatives” only if he made a prospective appointment to a vacancy that he did not anticipate would occur during his term?

Depending on how this and the preceding questions are answered, a president might be able to make a batch of nominations to, say, the next ten or twenty associate-justice vacancies that will occur, have a compliant Senate confirm those nominations, and then make prospective appointments that will spring into operation over a course of many years, with the appointed individuals filling new vacancies as associated justices whenever such vacancies arise.

6. If the OLC opinion is correct and Biden could make a prospective appointment of Jackson, how must such an appointment be worded?

As I have noted, when the president uses the conventional language of the judicial commission, he states that he thereby “authorize[s] and empower” the appointed judge “to execute and fulfil the duties” of the judicial office. Without some amendment, such language in a commission making a prospective appointment would seem to be lie and thus a nullity.

According to the 1968 OLC opinion, President Grant’s commission of Edwin M. Stanton on December 20, 1869, specified that it would “take effect on or after February 1 [1870],” the date on which Justice Grier’s resignation would take effect, and President Harding’s commission on September 5, 1922, of George Sutherland to replace Justice Clarke likewise stated “commencing September 18, 1922,” the date on which Clarke’s resignation would take effect.

What does the commission that Biden has apparently issued Jackson actually say? And if it doesn’t similarly specify that it takes effect only upon Breyer’s retirement (or on a specific date that ends up being after Breyer’s retirement), is it nonetheless somehow valid?

* * *

As I have previously explained, it appears that Biden resorted to a prospective appointment of Jackson in order to try to foreclose the farfetched possibility that the Senate might somehow adopt a motion to reconsider its confirmation of Jackson. When Breyer does retire, Biden should issue Jackson a second commission in order to eliminate any question over the legitimacy of her appointment as an associate justice.

This Day in Liberal Judicial Activism—April 18

By ED WHELAN

April 18, 2022 8:00 AM

1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment. Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Day for April 7, 1969). And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents.

1990—At the same time that it unanimously holds that a federal district judge, in implementing a desegregation plan, lacked the authority to directly impose an increase in the property-tax levy in a school district, the Supreme Court decides, by a 5-to-4 vote (in Missouri v. Jenkins), that the judge may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws.

Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy disputes the “purported distinction between direct imposition of a tax by the federal court and an order commanding the school district to impose the tax,” and he condemns the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2007—Dissenting from the Supreme Court’s rejection (in Gonzales v. Carhart) of a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003, Justice Ruth Bader Ginsburg predicts that as-applied challenges to the law “will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.” In fact, years later, not a single such challenge will have been brought. Why not? Probably because (as I explored in “The Mystery of the Missing Lawsuits”) the abortion industry’s medical evidence that Ginsburg was so eager to credit has always been very feeble.

2018—A Sixth Circuit panel rules (in Planned Parenthood v. Himes) that an Ohio law that bars the state department of health from funding organizations that perform or promote nontherapeutic abortions violates a Planned Parenthood affiliate’s constitutional rights.

In March 2019, the en banc Sixth Circuit, by a vote of 11 to 6, will repudiate the panel’s reasoning.

This Day in Liberal Judicial Activism—April 17

By ED WHELAN

April 17, 2022 8:00 AM

2009—Canon 2 of the Code of Conduct for United States Judges provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” But then-Second Circuit judge Sonia Sotomayor evidently doesn’t see that canon as a barrier to partisan public cheerleading for Barack Obama. In a speech to the Black, Latino, Asian Pacific American Law Alumni Association—two weeks before news of Justice Souter’s decision to resign from the Court becomes public—Sotomayor makes a number of surprisingly partisan pro-Obama comments:

“The power of working together was, this past November, resoundingly proven.”

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”

“On November 4, we saw past our ethnic, religious and gender differences.”

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.”

Weeks later, President Obama will nominate Sotomayor to fill Souter’s seat.

This Day in Liberal Judicial Activism—April 16

By ED WHELAN

April 16, 2022 8:00 AM

2008—Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange. Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment. But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment.

In a brief opinion responding to Stevens’s folly, Justice Scalia comments on Stevens’s ultimate reliance on his “own experience”: “Purer expression cannot be found of the principle of rule by judicial fiat.”

2010—As part of an impressive early bid to displace Rosemary Barkett as the wackiest judge on the Eleventh Circuit, new Obama appointee Beverly B. Martin votes in dissent (in United States v. Lee) to overturn Van Buren Lee’s conviction for attempting to entice a child to engage in illicit sexual activity. Martin argues that there was insufficient evidence to support the jury finding that Lee had taken a “substantial step” towards committing enticement, as he “never bought a plane, bus or train ticket” to travel to California (where he believed the targets of his actions to live) and “never set a date for a visit.”

Travel logistics aside, the majority spells out in painful detail that Lee and “Candi Kane”—the postal inspector posing as the mother of two girls, ages seven and twelve— “repeatedly discussed whether, how, and when Candi would grant Lee sexual access to her daughters, and Lee produced and sent Candi and her daughters sexually explicit images of him.”

2020—In a case challenging the Connecticut Interscholastic Athletic Conference’s policy of allowing biological males who identify as females to compete against girls, federal district judge Robert Chatigny chastises the girls’ attorneys for referring to the male athletes as “males.”

M. Edward Whelan III
Distinguished Senior Fellow and

Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
1730 M Street N.W., Suite 910
Washington, D.C. 20036
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www.EPPC.org