Can a president nominate him/herself to the Supreme Court?

In theory, can a U.S. President nominate him/herself to the Supreme Court?

If confirmed, I assume the vice-president would become president?

As far as I can see, the Constitution does not exclude that possibility. In addition, the constitution does not set any qualifications for Supreme Court justice.

If confirmed, the President would presumably resign and the Vice President would become President. However, there may not be an explicit prohibition for a President simultaneously being a Supreme Court Justice. (There is a prohibition on members of Congress holding other federal office.)

One person simultaneously holding the offices of President and Supreme Court Justice would of course violate the principle of separation of powers, since the Executive and Judicial would be overlapping. Of course, the ultimate arbiter of whether or not such a thing would actually be Constitutional would be… the Supreme Court.

Hopefully no President ever does that, it could create a real mess. Kinda like exploiting a bug in the Constitution.

Might make a fun political novel, though…

Although the separation of powers is implicit in the Constitution, is it ever explicitly mentioned in the document itself?

I think what the OP & Colibri suggested would be the case–if approved, the President would become a Justice, but would no longer be president. VP would become POTUS.

Interestingly, the emoluments clause prohibits people from serving in the executive and legislative branches simultaneously, but makes no mention of the judicial branch.

That said, an executive federal employee serving in the judicial branch simultaneously is certainly unprecedented, and may be illegal for other reasons. A quick resignation from the presidency would solve that problem, but of course there remains the political problem of getting Senate approval for yourself.

It is not (at least regarding the Executive and Judicial), which is why I said that the Supreme Court would have to rule on it. Has the Supreme Court ruled on separation of powers before?

I’m unclear on why, if a particular thing is not contrary to the Constitution, the Supreme Court would have to rule on whether it was allowed.

Separation of powers is implied by the Constitution, but not explicitly stated. The Supreme Court could potentially rule that the implication amounts to the rule of law, as it has on multiple other things implied but not stated, including such things as the right to privacy and judicial review itself.

I see that somehow there seems to be the belief that ONLY the Constitution may impose a restriction against holding two federal offices in different branches at once. Why would that not be a matter handled by regular statute or by the Rules of the Supreme Court?

I believe that the Supreme Court has held, in previous cases, that when the Constitution put specific requirements on holding an office, those are the only requirements that are valid. Adding additional requirements or limitations can only be done by amending the Constitution.

Thus the 2-term limit for Presidents, and the requirement that Senators be elected directly by the voters of their state, were done by the 22nd and 17th Amendments to the Constitution. Also, some states have tried to put term limits on US Congress (House or Senate) members, and these have been voided by the Courts, because there is no such limit in the Constitution.

It’s an open question whether the Court would find any Constitutional barrier to this.

Does something have to be explicitly mentioned in the constitution in order to be covered by the constitution? “Privacy” is never mentioned in the constitution.

See Loopus’s post #10 and other posts above.

Implicit restrictions would I think certainly need to be resolved by the Supreme Court.

This is one of those constitutional questions that may be of theoretical interest, but which will never be tested in real life. It would take an overwhelming political dominance by one party to make a president nominating himself to the Supreme Court feasible, even aside from the question of whether someone could serve in both offices simultaneously.

I saw a suggestion somewhere on-line today (perhaps facetious? Or maybe not so much?) that Obama should nominate himself. It was suggested that the Republicans in Congress should be overjoyed at the opportunity to vote him out of the White House. :slight_smile: Or, perhaps, that they would find it politically awkward to have such an opportunity and pass it up!

In fact, the idea has apparently been kicking around for a while. This article in the Washington Post, Feb. 21, 2010, discusses the possibility.

This article, at a site called “abovethelaw”, dated Feb. 19, 2010, cites the WP article and comments a little more on it. (Huh? Article dated Feb. 19 cites and quotes article dated Feb. 21. Very clairvoyant!) The general gist of these articles is that he is actually well-suited to be a SCOTUS justice, perhaps even more suited to that than he is as president.

The idea is also making the rounds that, should the Pubs block any appointment this year, as they are threatening to do, and if Clinton or Sanders is our next prez, and especially if the Dems recapture the Senate (all plausible possibilities), then the new POTUS, Clinton or Sanders, should nominate Obama, and the Senate could very likely push it through. Heads will be exploding!

President couldn’t swear in as Justice and be true to his Presidential oath…

President and Senators and Congress can’t resign to get the higher paying job. ? its a complicated law… it might not cover President ?
President also can’t be paid for any other public service job, he can’t receive any emolument for some other office or job. Of course he could volunteer his time at the courts, but it would be arguable that the office of Justice of the Supreme Court is not a volunteer position…

yes, true, Article Three prevents their emolument being diminished during their tenure !, so no volunteers !.

He can nominate himself… then its question of whether nomination is taken as resignation, because if he isn’t president at the time of swearing in, is the nomination valid ? “Nominated, by Barrack Obama, ordinary Citizen”… If he is president, can he swear in as Justice ? No , so it would be a catch 22.
No matter , Congress can install him as Justice OR undo his self-nomination…
Its not clear that the President gets to do these things, the congress just let the pres say stuff like that, it sounds good. But if congress wants to block the president’s nomination of a person to be Justice, they can just reduce the number of Justices, so that there is no longer any vacancy !.

While I agree that the Supreme Court could rule on such a thing if it reached them, I’m curious as to how it would get there. Someone would need to create a case in the first place by suing, and I’m not sure who would have the standing to do so.

One suspects the SCOTUS itself would have standing here. There must be a time when the issue is so fundamental that the SCOTUS takes things upon itself to decide an issue.

Surely the simple way forward would be for Obama to take up the office when he ceases being President? It’s only 11 months.

nm