(TheLibertyRevolution.com)- According to Bloomberg News, earlier this month, President Biden signed the commission papers to appoint Ketanji Brown Jackson to the Supreme Court even though she won’t begin her term until after Justice Stephen Breyer retires this summer.
The president signed Jackson’s commission on April 8, the same day she appeared with the president and Vice President Harris at a Rose Garden event celebrating her confirmation by the Senate.
Ordinarily, a new justice is sworn in immediately after the president signs the commission. But Jackson was confirmed more than two months before the vacancy from Breyer’s retirement is expected, leading some to question Jackson’s status.
An April 6 opinion from the Justice Department’s Office of Legal Counsel concluded that the president could “prospectively appoint” Judge Jackson before Stephen Breyer officially steps down.
At the end of the day, this doesn’t change anything and the president signing the commission two months before Jackson is sworn in has no practical ramifications. The only possible benefit to signing her commission two months before her swearing-in is if the Senate was to reconsider her confirmation. But what are the odds of that? Jackson was confirmed 53 to 47.
She still won’t be sworn in until after Justice Breyer steps down.
The opinion from the Office of Legal Counsel said presidents can make “prospective appointments” for “anticipated” vacancies that occur during the president’s term in office. However, the opinion doesn’t specifically spell out what a “prospective appointment” would include.
For example, it did not say whether the president could make a “prospective appointment” for a justice who hasn’t yet announced plans to retire from the court.
A copy of the commission signed by the president