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Tue Apr 19, 2022, 05:41 PM

Biden Signs Jackson's Supreme Court Commission Early in Unusual Move

Source: Bloomberg

(Bloomberg) -- 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.

Read more: https://www.msn.com/en-us/money/other/biden-signs-jacksons-supreme-court-commission-early-in-unusual-move/ar-AAWnybP

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Reply Biden Signs Jackson's Supreme Court Commission Early in Unusual Move (Original post)
TheProle Apr 2022 OP
bucolic_frolic Apr 2022 #1
mahina Apr 2022 #2
bucolic_frolic Apr 2022 #3
BumRushDaShow Apr 2022 #4
Novara Apr 2022 #5
GregariousGroundhog Apr 2022 #8
Polybius Apr 2022 #18
Novara Apr 2022 #22
melm00se Apr 2022 #24
raging moderate Apr 2022 #25
FBaggins Apr 2022 #26
FBaggins Apr 2022 #27
Polybius Apr 2022 #31
FBaggins Apr 2022 #34
Polybius Apr 2022 #37
FBaggins Apr 2022 #38
Polybius Apr 2022 #39
FBaggins Apr 2022 #41
Polybius Apr 2022 #42
GregariousGroundhog Apr 2022 #6
unblock Apr 2022 #9
KPN Apr 2022 #15
unblock Apr 2022 #16
PoliticAverse Apr 2022 #21
PoliticAverse Apr 2022 #20
FBaggins Apr 2022 #29
Akoto Apr 2022 #7
Mawspam2 Apr 2022 #10
eggplant Apr 2022 #11
Rebl2 Apr 2022 #14
FBaggins Apr 2022 #28
Hortensis Apr 2022 #33
mahina Apr 2022 #12
Rebl2 Apr 2022 #13
Ace Rothstein Apr 2022 #17
C Moon Apr 2022 #19
Novara Apr 2022 #23
PoliticAverse Apr 2022 #32
FBaggins Apr 2022 #30
Captain Zero Apr 2022 #35
FBaggins Apr 2022 #36
dalton99a Apr 2022 #40

Response to TheProle (Original post)

Tue Apr 19, 2022, 05:44 PM

1. Great, now if he can find a way to remove some other ones early that would be better

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Response to TheProle (Original post)

Tue Apr 19, 2022, 05:47 PM

2. Lock it in!

Good going!

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Response to mahina (Reply #2)

Tue Apr 19, 2022, 06:03 PM

3. Yeah, you never know when they might sue, or try to overthrow SCOTUS or hire Mitch

to grab one back for the team.

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Response to TheProle (Original post)

Tue Apr 19, 2022, 06:10 PM

4. Excellent!

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Response to TheProle (Original post)

Tue Apr 19, 2022, 06:10 PM

5. Court packing! DO EEEEET!

Put her on the court right now, I dare you. Let them fight you, Joe. Meet them on their ground. If they can fuck with the SCOTUS, then SO CAN WE. Do it!

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Response to Novara (Reply #5)

Tue Apr 19, 2022, 06:20 PM

8. I kind of wonder what would happen if Breyer decided to change his mind

Is there anything to stop Justice Breyer from saying "Just kidding" and return for another term at the Supreme Court? I mean, Brett Favre and Tom Brady did in in the NFL.

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Response to Novara (Reply #5)

Tue Apr 19, 2022, 10:59 PM

18. He can't

It's 9 by law (Judiciary Act of 1869). It would have to be repealed and replaced by Congress, and signed into law by Biden first.

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Response to Polybius (Reply #18)

Wed Apr 20, 2022, 05:54 AM

22. Wasn't McConnell in violation of that law

when he refused to consider Obama's choice?

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Response to Novara (Reply #22)

Wed Apr 20, 2022, 06:47 AM

24. Now because the timing

of the hearings and subsequent vote(s) under advise and consent would be covered under Article I, § 5, paragraph 2:

"Each House may determine the rules of its proceedings..."

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Response to Novara (Reply #22)

Wed Apr 20, 2022, 07:44 AM

25. Yes, you are right!

And there is that passage in the US Constitution: "The President SHALL appoint...." Too many people did not learn in grade school what it means when the word "shall" is used in a third-person clause instead of the word "will." You bet that all of those at that Constitution Convention had learned that in school.

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Response to raging moderate (Reply #25)

Wed Apr 20, 2022, 08:42 AM

26. "Shall appoint" is preceded by "Consent of the Senate"

Obviously, without their consent, the president can only nominate.

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Response to Novara (Reply #22)

Wed Apr 20, 2022, 08:43 AM

27. No. The number of slots didn't change

Only whether one was vacant.

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Response to Novara (Reply #22)

Wed Apr 20, 2022, 11:39 AM

31. Nope

It was just a rotten thing to do. The Majority Leader has the sole power to do that.

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Response to Polybius (Reply #31)

Thu Apr 21, 2022, 05:43 AM

34. That last part isn't true

The Senate Majority Leader is not a constitutional position. They only have power to the extent that they have 51 votes behind them.

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Response to FBaggins (Reply #34)

Thu Apr 21, 2022, 11:33 AM

37. Sure it is

They have the power to not put up for a vote a bill passed by the House or nominee sent by the President.

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Response to Polybius (Reply #37)

Fri Apr 22, 2022, 04:43 AM

38. Nope. He has no such power

Nothing in the rules of the senate says that there won’t be a vote on a bill or nominee unless the majority leader brings it up. ANY senator can make such a motion and (if they have 50 other votes behind them) it will be taken up.

The majority holds power in the senate, not the majority leader. The leader only wields the procedural power because he claims to have the votes behind him to back it up.

If Schumer wants a nomination to be taken up he’s just making a motion. The senate usually gives unanimous consent to that motion because it’s assumed that he has the votes of his caucus in his pocket. But if Manchin stands up and declines consent… there would be a vote. And if that vote failed because 50 republicans agreed with Manchin? It wouldn’t matter that Schumer bears the title of “majority leader”.

The reverse is also true. If any single senator made a motion to bring up a bill, it wouldn’t matter whether Schumer agreed or not if that senator had 50 others who agreed with her.

The majority leader has a traditional power based on the privilege of being recognized first. But that’s only useful so long as he can stand there. The minority leader is next in line.

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Response to FBaggins (Reply #38)

Fri Apr 22, 2022, 10:37 AM

39. There were Republicans who wanted a vote on Garland, such as Flake from AZ

So why didn't Flake force a vote?

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Response to Polybius (Reply #39)

Fri Apr 22, 2022, 11:15 AM

41. Not four of them

So why didn't Flake force a vote?

Because he would lose it?

In the example above, Manchin could not force a vote if there were 54 Democratic senators and the rest stood with the majority leader.

And it's a stretch to even characterize Flake as "wanting a vote on Garland". In the weeks after the nomination he said that they should vote on Garland IF it looked like Clinton was going to win the election (because Clinton's selection would surely be to the left of Garland) - and then in October he made statements that he thought it was now clear that Clinton was going to win so they should consider moving forward with the confirmation. That isn't an indication that HE would be willing to buck the party on the issue... let alone that three other senators agreed with him.

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Response to FBaggins (Reply #41)

Sat Apr 23, 2022, 12:07 PM

42. Gotcha, I misread

I thought you had said it only takes one from the majority Party. Thanks for the info, very interesting!

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Response to TheProle (Original post)

Tue Apr 19, 2022, 06:11 PM

6. So this may be a dumb question but...

Does that mean that the Supreme Court technically has 10 members on it at the moment?

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Response to GregariousGroundhog (Reply #6)

Tue Apr 19, 2022, 06:36 PM

9. The judiciary act of 1869 sets the number at 9.

A president can't simply appoint an additional seat.

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Response to unblock (Reply #9)

Tue Apr 19, 2022, 07:42 PM

15. FDR and his advisers sure thought he could,

and the court itself responded so it apparently also did at the time. What has changed other than the players?

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Response to KPN (Reply #15)

Tue Apr 19, 2022, 07:56 PM

16. It's set by law. Congress could change it, but this congress won't.

Get more than a nominal majority and yeah, could happen.

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Response to KPN (Reply #15)

Wed Apr 20, 2022, 05:48 AM

21. FDR's plan required Congress to pass a bill implementing it. n/t

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Response to GregariousGroundhog (Reply #6)

Wed Apr 20, 2022, 05:01 AM

20. No. The number is fixed by law at 9 and she's not an associate justice until she's sworn in anyway.

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Response to GregariousGroundhog (Reply #6)

Wed Apr 20, 2022, 08:49 AM

29. No - the advisory opinion makes clear that she can't be seated until he retires

Judge Jackson will not, however, assume the office of Associate Justice until Justice Breyer’s resignation is effective. See Power of the President to Nominate and of the Senate to Confirm Mr. Justice Fortas to Be Chief Justice of the United States and Judge Thornberry to Be Associate Justice of the Supreme Court, 3 Op. O.L.C. 154, 155 & n.2 (1968)

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Response to TheProle (Original post)

Tue Apr 19, 2022, 06:19 PM

7. Could Breyer be ill or something? Dunno. Glad Justice-To-Be Jackson is set!

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Response to Akoto (Reply #7)

Tue Apr 19, 2022, 06:55 PM

10. I think this has more to do with Biden's health.

Lock it in now so it can't be undone regardless of future circumstances.

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Response to Mawspam2 (Reply #10)

Tue Apr 19, 2022, 07:17 PM

11. He just announced he's running in 2024. Why do you think it has to do with his health?

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Response to eggplant (Reply #11)

Tue Apr 19, 2022, 07:34 PM

14. He has been

down this road. Had a wife and daughter die in an accident and a son die from cancer. He knows things happen. He just thinks ahead about things that could happen. Glad he did this.

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Response to eggplant (Reply #11)

Wed Apr 20, 2022, 08:46 AM

28. Not just his health

We could (barely) count on 50 senators and the VP to break the tie. There was concern that something could happen to one of those senators and put McConnell back in charge of the confirmation process.

Indeed, there was a senator who was out for a few weeks due to a medical issue.

This way - she's guaranteed to replace him when he retires - whether something happens to the president or one or more senators.

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Response to FBaggins (Reply #28)

Thu Apr 21, 2022, 05:38 AM

33. Another informed, informative post. Thanks, F. :)

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Response to Mawspam2 (Reply #10)

Tue Apr 19, 2022, 07:20 PM

12. Thank goodness

His health is great despite the terribly edited videos on faux nooz and constant drumbeat of the msm on his age. As if any of us get younger.

Honestly I think he’s the most qualified president we’ve ever had. He’s rising to the occasion, those rats keep blocking him at our expense, and he keeps finding a way to help us. God love him

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Response to Mawspam2 (Reply #10)

Tue Apr 19, 2022, 07:28 PM

13. My thought

exactly. I know he is fine, but lock it in in case something were to happen before Breyer steps down.

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Response to Mawspam2 (Reply #10)

Tue Apr 19, 2022, 09:55 PM

17. I think it had much more to do with the 50-50 Senate.

And the health/age of some of the Senators.

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Response to Mawspam2 (Reply #10)

Wed Apr 20, 2022, 12:08 AM

19. Huh?

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Response to TheProle (Original post)

Wed Apr 20, 2022, 06:32 AM

23. Maybe Biden is sending a message to Congress

Expand the court?

Not that this Congress will do it. They're chickenshit and they know it won't get passed.

But that brings up a question: if Congress can write legislation to reform and/or expand SCOTUS, does it need a 2/3 majority in the Senate or a simple majority?

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Response to Novara (Reply #23)

Wed Apr 20, 2022, 05:18 PM

32. It will need 60 votes because some Democratic Senators won't agree to override the filibuster. n/t

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Response to TheProle (Original post)

Wed Apr 20, 2022, 08:53 AM

30. The open question here (based on the cited opinion)

Is whether Biden can declare that he expects another vacancy during his term and then pre-fill it with the current Senate.

I rather doubt that it would fly (either in public opinion or by in sufficient senate support to pull it off) - but it's an interesting question.

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Response to FBaggins (Reply #30)

Thu Apr 21, 2022, 06:13 AM

35. I think it says she could take her seat NOW - 10 justices.

Then if someone wants to retire and make it 9. That's ok.

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Response to Captain Zero (Reply #35)

Thu Apr 21, 2022, 06:28 AM

36. Nope. See #29 above for the actual text

This would have been a much bigger deal if they tried that.

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Response to TheProle (Original post)

Fri Apr 22, 2022, 10:51 AM

40. Good.

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