Alito won’t retire in the lame duck and he doesn’t need to. Trump can nominate someone to the Supreme Court and the senate can confirm without a vacancy. Then Trump can sign the commission any time in the next two years. The question isn’t Alito, its Cornyn/Tillis/Thine.
I know that Trump’s lawyers are creating interpretations of law that nobody has ever thought of before, but this even as a possibility is new to me. Anybody know enough about the Senate rules for confirmation to know whether a scheme like this is a real loophole? Isgur is a conservative lawyer who worked at the DoJ during Trump 1 and a Harvard Law graduate, so she might have some insight into their thinking.
Can the Senate confirm a nominee before an opening and if so must that person be seated even without confirmation hearings when the opening appears? Please don’t get sidetracked on whether it could get passed. That’s a different thread.
It would seem to be a dumb move, as the new Congress could just add as many as they need to get a majority of liberal judges. I don’t thing that’s a war they want to start.
The numbers aren’t there. McConnell is barely alive. Cornyn and Tillis are lame ducks and have no reason to help Trump after he backstabbed them, and I can’t imagine Murkowski or Collins going along with it either.
Warning for Smapti, way to ignore clear instructions so early and hijack the thread. You’ve picked up 4 warnings in the last year, this might lead to a 3 day suspension to help you think about how you can stop hijacking threads. Meantime it will be a 1 day suspension for discussion.
All 4 warnings and more notes are for you hijacking threads.
As far as I know, nominating a new justice before a current one dies or announces their retirement isn’t something that’s been done before. Which isn’t to say that it isn’t possible.
The question in the OP seems to be, could Trump nominate and the Senate approve a new SC justice in advance of a vacancy, not could they increase the number of seats. Also, it is not clear that Congress by itself could add seats, without that effort being vetoed by the President. Finally, if they did succeed in doing that, SC justices have to be nominated by the President, so adding seats during the next Congress does not seem like a viable way to get a majority of liberal justices.
That said, I think you are right that neither side seems willing to go down that expansion route, at least not yet.
Trump does nominate a “pre-approved” justice, for the next vacancy
Assuming it passes - it would then be challenged to, presumeably the Supreme Court on whether it is “legal” (or allowed)
So I guess the real / final question is not “is this legal” as given nobody has tried it, and it is not explicitly precluded, but “would the Supreme Court approve this move?”
If the justice then retires before the President or Senate retires, then this scheme doesn’t actually change anything. If the justice doesn’t retire until after the Senate and/or President changes, then the new officeholder(s) could just withdraw the nomination and/or consent.
Again, “anticipated vacancies” is not a hard requirement for SCOTUS, correct? Trump could nominate, and the Senate confirm, fifteen justices.
There needn’t be a vacancy, though clearly for other Federal judgeships that’s a different story. The question here is can Trump appoint, get a confirmation from the current hypothetically friendly Senate, then sit on the confirmation till Alito or Thomas croak or retire.
Right. But @Procrustus’ link seems to be the legal underpinning for advance vacancies that I was looking for. Thanks for that.
Under Article II, § 2, cl. 2 of the Constitution, the appointment process for judges consists of three steps: nomination by the President, advice and consent of the Senate, and appointment by the President. A President may nominate, and the Senate may confirm, a person to an office in anticipation that the office will be vacant during the President’s term of office. Confirmation without appointment does not confer any rights on the nominee; the President remains free to decide that he does not want to appoint a confirmed nominee. When the anticipated vacancy does not arise, no appointment of the confirmed nominee is possible.
An opinion by the Office of Legal Counsel is not law, though. And whether judges include justices is open as well. Apparently some one back in 1986 thought about this seriously enough to have the DoJ look into it.
It is arguably legally the same, but the intent is quite different. The 1986 question was in the context of an associate justice vacancy created when the president nominates an existing justice to be chief Justice.
Quote what in that link you think supports your post. A blind link that has nothing to do with your post with your track record will get you a warning.
There is no more tolerance for your semi-trolling. Even if inadvertent, it is a problem.