Madden on Contingent Judicial Vacancies

Matthew Madden (University of Virginia - School of Law) has posted Contingent Judicial Vacancies and the Appointments Clause (Virginia Law Review, Vol. 93, 2007) on SSRN. Here is the abstract:

Justice O'Connor, like a handful of justices before her, retired from the bench contingent upon Senate confirmation of her successor. The President nominated three individuals to her seat and the Senate proceeded to provide its advice and consent to the appointment of then-Judge Samuel Alito. All the while, O'Connor continued to serve on the Court, vote in pending cases, and write opinions. This Note argues that such nominations and confirmations are constitutionally inappropriate while a predecessor has not actually departed the federal bench.

In reaching that conclusion, this Note makes two unique contributions to the Appointments Clause literature. First, it develops an argument that the President's power to nominate must be triggered by a vacancy — actual or anticipated — that is sufficiently definite and irrevocable. The Note develops an analytical framework to consider whether certain kinds of departure from office satisfy this "vacancy prerequisite."

Second, after briefly discussing the recent development of judicial retirement incentives, this Note argues that contingent retirements of life-tenured judges are not sufficiently definite and irrevocable to satisfy the vacancy prerequisite. These contingent retirements skew constitutional roles, place power to time judicial departure in political hands, ignore the import of recess appointments, and risk giving a sitting judge "veto" power over her successor if she can withdraw a contingent retirement.

In conclusion, this Note suggests that implementation is most likely to come from political, not judicial, actors who find an interest in declaring contingent judicial vacancies to be insufficient to trigger the formal appointing process.