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billryan
billryan
Joined: Nov 2, 2009
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April 6th, 2022 at 7:51:12 AM permalink
No politics, please. Simply a civics question.

It appears Judge Jackson has the votes needed to approve her nomination and the process should go rather quickly now.
However, Justice Breyer, the man she is replacing, has said he will stay on until the end of this term.
My question is what happens if another Justice retires or dies before then.
Does she slide into the court as an already confirmed Justice or is she specifically designated to replace Justice Breyer and a new candidate would have to be found, vetted, nominated, and possibly seated while Justice Breyer remains and Judge Jackson waits?

This can't be a unique situation but I can't find a precedent.
The difference between fiction and reality is that fiction is supposed to make sense.
rsactuary
rsactuary
Joined: Sep 6, 2014
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April 6th, 2022 at 8:39:20 AM permalink
I think someone is nominated to fill an open chair. Not "so and so's" chair specifically. Not an expert so could be wrong. Of course, usually there is only one open chair, so it's obvious who is being replaced.
ThatDonGuy
ThatDonGuy
Joined: Jun 22, 2011
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April 6th, 2022 at 2:51:46 PM permalink
Technically, Jackson cannot be appointed before Breyer officially resigns/retires. While nothing in the Constitution specifies the number of justices, Title 28, Section 1 of the United States Code does limit it to nine justices.

Also, it appears that the text of the nomination (PN1783) does specify that she is replacing Justice Breyer, so, presumably, if there is another opening, there would have to be another nomination submitted to the Senate, although nothing prevents pulling the existing nomination and nominating Jackson to the other vacancy.
BillHasRetired
BillHasRetired
Joined: May 7, 2022
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May 7th, 2022 at 9:43:48 PM permalink
Preliminary answer here, but needs more research (and it's too late at night for me to do some right now)

The nomination process has ended, and Judge Jackson has passed the Advice and Consent phase. The next step is receiving the Presidential Commission, which I believe she has done (research needed here). I believe that she is currently 'on hold' awaiting a vacancy, which should occur sometime in late June or possibly the first week of July. At that point, she would be required to take two oaths of office--one the standard oath administered to all gov't officials that require A&C from the Senate, and a second Judicial Oath of Office, that is normally administered before the October session begins in October. Yes, it's quite likely that she's going to be in her current judge slot (research for court name) until late September, but I doubt that CJ Roberts does that, since she's going to have to learn some of the ropes, like the Shadow Docket and she'll have to take over Breyer's oversight of certain Circuits on that docket.

My guess? She's getting briefed on SCOTUS, probably getting tips from Breyer and other Justices, and she's going to be sworn in the first week of July, just so they can put her to work immediately.

No, I'm not a Lawyer. But I've been fascinated with SCOTUS and other law areas since college...quite a while ago..
Wizard
Administrator
Wizard
Joined: Oct 14, 2009
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May 7th, 2022 at 10:20:26 PM permalink
I don't know enough to comment on the topic at hand. However, my finger is on the "close thread" button, ready to click as soon, as this drifts from statements of fact to opinions.
It's not whether you win or lose; it's whether or not you had a good bet.
UP84
UP84
Joined: May 22, 2012
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May 8th, 2022 at 5:23:47 AM permalink
Quote: billryan

No politics, please. Simply a civics question.

It appears Judge Jackson has the votes needed to approve her nomination and the process should go rather quickly now.
However, Justice Breyer, the man she is replacing, has said he will stay on until the end of this term.
My question is what happens if another Justice retires or dies before then?


If that happens, and the vacancy is from the death or immediate resignation of another justice, she will not automatically step on to the bench and fill the new vacancy. A separate nomination and confirmation will be needed to fill that slot....she'll have to wait until Breyer retires before taking her two oaths and sitting on the bench.
Last edited by: UP84 on May 8, 2022

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