If Trump should die before his nominee to SCOTUS is confirmed, would Pence, as the new president, have to or be entitled to make a new nomination to fill the empty seat? I suppose he could let Barrett’s nomination stand or renominate her, but could he nominate someone else if he so chose? Could the Dems sue to force Pence to make a new (re)nomination?
Senate confirmation does make a candidate a judge, or justice in this case. Following approval by the Senate the President may appoint a nominee, or not. So Pence can make a new nomination if he feels like it. Or he could go ahead and appoint Barret if the Senate had approved.
Argh!
Senate confirmation does NOT make a candidate a judge…
That’s OK. I made the compensating mistake when reading your post 
He would likely not have to. This blog post collects a number of examples from Kennedy/Johnson and Nixon/Ford where a judge was nominated by a president and then commissioned by his successor. I suppose it’s a question of Senate rules (i.e., is a nomination returned if the nominator dies during the pendency of the nomination?) but history suggests that the Senate does not require it. I suppose the Dems could sue on this front, but I can imagine a court getting involved in something so squarely within the Senate’s prerogative.
I assume that a president can withdraw a nomination up to the point of confirmation, so I would assume that a new president could withdraw it and nominate someone else.
And nominations, of course, expire by rule at the end of the Congress.
If Trump passes away, the nomination of Barrett would still remain pending in the Senate. Pence could do nothing, in which case the Senate could continue with the process and vote to confirm her. He could withdraw her nomination and nominate someone else if he so chose.
Just to clarify what’s going on here, since “appoint” and “nominate” are often used to mean the same thing in this context: once the Senate confirms a nominee, the President signs a commission officially appointing the person to office. It’s that commission that finally makes the person a judge (or executive branch officer.)
Has there ever been a case of a President nominating somebody, having the Senate confirm his nomination, and then declining to follow through by actually appointing the judge?
There’s a rather famous case that touches on it, but that involved separate presidents in a court-packing battle. I’m not sure if a president has ever declined to appoint a judge that they nominated after confirmation; they typically have the commission ready to go as soon as the Senate votes.
But I wouldn’t be surprised if it’s happened to military officers here and there. A lot of middle-management officer positions are approved en masse in routine votes. Given how many there are, it may have come up occasionally due to some controversy occurring in the interim.
I considered that case but President Adams signed William Marbury’s commission and thereby officially appointed him. But then President Jefferson refused to deliver the signed commission and let Marbury take his appointed position.
This DOJ OLC opinion from 1999 concludes that the president has complete discretion to sign the commission or not, even after confirmation. All of the example that it points to military officers (and only a few of those), which suggests that there aren’t many (any) other examples – OLC is pretty good at finding historicla precedents.
That’s a great resource - and very emphatically to-the-point. Nice find.