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May the President Prospectively Appoint a Supreme Court Justice to a Seat that Is Not Yet Vacant?
Reason ^ | 4/16/2@ | Jonathan H. Adler

Posted on 04/16/2022 6:58:32 AM PDT by untenured

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To: Gaffer

Would pay good money to watch that plot twist play out.


21 posted on 04/16/2022 7:25:09 AM PDT by one guy in new jersey
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To: untenured

What happens if Brennan rescinds his resignation? That would be fun


22 posted on 04/16/2022 7:26:21 AM PDT by FatherofFive (We support Trump. Not the GOP)
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To: chiller

DOJ’s Office of Legal Council says:

“Since 1986, twelve individuals have been nominated prospectively to the Supreme Court, including Judge Jackson.”

Why do I not recall even one instance other than Jackson.


23 posted on 04/16/2022 7:27:54 AM PDT by chiller (Davey Crockett said: "Be sure you're right. Then go ahead'. I'm going ahead.)
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To: mkmensinger

Article III judges and justices don’t serve at the pleasure of POTUS, and can’t be forced by same to make good on a professed intention to resign, so, presumably, the KBJ era would have to wait, or, if delayed long enough, would be ended before it were even to begin.


24 posted on 04/16/2022 7:30:12 AM PDT by one guy in new jersey
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To: Karoo

IIRC, the USSC is statutorily limited to 9 seats.


25 posted on 04/16/2022 7:36:56 AM PDT by Gaffer
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To: untenured

This is a bad idea, why do we have elections?


26 posted on 04/16/2022 7:37:19 AM PDT by dila813
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To: untenured

So,packing the court is legitimate.🙄🖕


27 posted on 04/16/2022 7:38:13 AM PDT by BiteYourSelf ( Earth first we'll strip mine the other planets later.)
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To: tired&retired

Except the uniparty wouldn’t have allowed him to.🙄


28 posted on 04/16/2022 7:39:32 AM PDT by BiteYourSelf ( Earth first we'll strip mine the other planets later.)
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To: dila813

We don’t


29 posted on 04/16/2022 7:40:55 AM PDT by bankwalker (Repeal the 19th ...)
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To: untenured

I have this distinct feeling that it will be discovered that she is actually a he in the next couple of months.


30 posted on 04/16/2022 7:46:09 AM PDT by Revolutionary ("Praise the Lord and Pass the Ammunition!")
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To: untenured

“Jackson will not, however, assume the office of Associate Justice until Justice Breyer’s resignation is effective. . . . “

Been wondering about this. Can Breyer change his mind? Would sure like to know why he “resigned”.


31 posted on 04/16/2022 7:59:57 AM PDT by Neverlift (When someone says "you just can't make this stuff up" odds are good, somebody did.)
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To: one guy in new jersey
Article III judges and justices don’t serve at the pleasure of POTUS, and can’t be forced by same to make good on a professed intention to resign, so, presumably, the KBJ era would have to wait, or, if delayed long enough, would be ended before it were even to begin.

I have many professed intentions that I have not completed on. Justice Stephen Breyer should not vacate the Supreme Court, just for some fun and Dems heads exploding.

I believe that without the pressure, Breyer would have stayed 4 or more years. Look who replaced him. Some dumbass rebel, with an African name, clown with an washable mop of hair,

32 posted on 04/16/2022 8:01:22 AM PDT by dennisw
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To: rktman

Exactly. As the late Joe Sobran liked to remind us, the Constitution poses no threat whatsoever to our current form of government.


33 posted on 04/16/2022 8:07:18 AM PDT by Blurb2350 (posted from my 1500-watt blow dryer)
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To: Gaffer

I think it would be funny as hell if Breyer said, “on further consideration, I have decided to postpone my retirement until after the 2024 elections
/\

That’s the rub.

If Beyer stays till after 2022 , when the house and Senate have CHANGED

Then this
pre appointment
has
usurped
the next representatives prerogative.

Aka
Theft.


34 posted on 04/16/2022 8:07:23 AM PDT by cuz1961 (USCGR Veteran )
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To: dennisw
“I believe that without the pressure, Breyer would have stayed 4 or more years.”

Democrats being what they are, I’ve been nagged by the idea that Breyer won’t resign after all, Jackson will be sworn in, and the left will have begun the process of packing the court.

Who’s going to stop them?

35 posted on 04/16/2022 8:11:40 AM PDT by daler
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To: cuz1961

IIRC, no Congress (i.e., the numbered Congress sessions) is bound by that set forth in statute by any prior Congress....

What does that mean? To me it means that the ‘confirmation’ is not finalized - the new Congress (here, the Senate) would have to decide. I guess it really all boils down to ‘how official did Breyer make his impending announcement, and is there a means by which the regulations allow him to rescind it?


36 posted on 04/16/2022 8:16:17 AM PDT by Gaffer
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To: Gaffer

..I meant “that NOT set forth by statute”.....


37 posted on 04/16/2022 8:17:21 AM PDT by Gaffer
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To: G Larry
Not Constitutionally.

I don't recall an instance in the past several decades when this has been anything more of a minor obstacle for the dems, and in fairness, it's occasionally also been just an afterthought for Republicans as well.

If the senate starts looking like a loss and Schumer thinks there is even a fleeting chance of Thomas retiring or having medical issues, this wouldn't surprise me in the least.

38 posted on 04/16/2022 8:23:00 AM PDT by jz638
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To: Gaffer

To me it all stinks of end running the constitution.

There is no vacancy,

they have no legal standing to confirm kjb.

This sets bad precedent

to backfill the court ,

usurping the actual represenatives that are in place

at the time of actual vacancy.

If Beyer stays till after 2022, she can not be considered confirmed by a past body.

There is no vacancy
There is only an potential vacancy

This is theft.

Our rule of law is being raped by the Washington district of cartels.


39 posted on 04/16/2022 8:26:37 AM PDT by cuz1961 (USCGR Veteran )
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To: cuz1961

I agree


40 posted on 04/16/2022 8:29:37 AM PDT by Gaffer
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