WASHINGTON — President Joe Biden signed papers to appoint Ketanji Brown Jackson to the U.S. Supreme Court earlier this month even though she can’t begin work until Justice Stephen Breyer retires this summer.
Biden signed Jackson’s commission on April 8, the day they appeared together at the White House to celebrate her confirmation by the Senate, White House spokesman Andrew Bates said Tuesday.
Jackson’s precise status has been the subject of online discussion stemming from the unprecedented timing of her Senate confirmation, more than two months before a vacancy was expected to arise. Typically, a new justice is sworn in almost immediately after the president signs the commission.
The Justice Department’s Office of Legal Counsel concluded in an April 6 opinion that the president could “prospectively appoint” Jackson before Breyer steps down. That opinion relied on a 1970 memo written on a related issue by future Chief Justice William Rehnquist, then the head of the OLC.
The ins and outs of the appointment process aren’t likely to have any practical ramifications in Jackson’s case. Biden’s signing of her commission might eliminate any theoretical possibility of the Senate trying to reconsider her confirmation. She won confirmation on a 53-47 vote.
The administration’s approach also could serve as a precedent for future Supreme Court appointments in a politically divisive era for judicial nominations.
The OLC opinion, issued by Assistant Attorney General Christopher H. Schroeder, said presidents can make prospective appointments for vacancies “anticipated” to occur during their term in office. The opinion didn’t spell out exactly what that word means — for example, whether it would cover the case of a justice who was ill but hadn’t announced plans to leave the court.
Bates declined to provide a copy of the commission Biden signed.
