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The media is reporting that Justice Stephen Breyer plans to retire at the end of this year's court term.

Senate Majority Leader Chuck Schumer issued the following statement regarding the confirmation process.

President Biden’s Supreme Court nominee will receive a prompt hearing in the Senate Judiciary Committee and be considered and confirmed by the full United States Senate with all deliberate speed.

So, since Justice Breyer has not officially retired from the court, can the Senate confirm a President's nominee at this point of time?

Can the Senate confirm any federal judges or Cabinet positions when the incumbent has not vacated the position, for that matter?

If so, what's stopping the Senate from erroneously confirming judiciary nominees for seats that aren't vacant?

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    It is worth noting that, in his letter to President Biden, Justice Breyer states "I intend [my retirement] to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed." So, at least Breyer himself is under the impression that the Senate can confirm his successor before he vacates his seat.
    – acvill
    Jan 28 at 21:46
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    @acvill That alone made me want to ask much the same question as OP. Jan 29 at 3:56
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    A confirmation for a seat that isn't vacant wouldn't be erroneous. After the confirmation, the president has to actually appoint the person to the post, which is the only thing that cannot take effect while the post is occupied by someone else.
    – phoog
    Jan 29 at 22:43

2 Answers 2

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Yes - in 1994 the 103rd Congress voted to confirm President Bill Clinton's nomination of Stephen G. Breyer to replace Harry A. Blackmun. The nomination was received in the Senate on May 17th, and the 87-9 confirmation vote was held on July 29th. However, Blackmun didn't leave the bench until August 3rd.

In answer to your questions regarding whether the Senate can confirm other federal judges/Cabinet positions without a vacancy, it's perhaps helpful to examine the text of the nomination:

Stephen G. Breyer, of Massachusetts, to be an Associate Justice of the Supreme Court of the United States, vice Harry A. Blackmun.

The form of the confirmation is such that it will only come into force once the specified vacancy exists - this is also the case for other federal judges & other positions requiring Senate confirmations. As to what is stopping the Senate from erroneously confirming judiciary nominees for seats that aren't vacant - the final steps in the process are set out in the CRS report Supreme Court Appointment Process: Senate Debate and Confirmation Vote:

If the Senate votes to confirm the nomination, the Secretary of the Senate then attests to a resolution of confirmation and transmits it to the White House. In turn, the President signs a document, called a commission, officially appointing the individual to the Court. Next, the signed commission “is returned to the Justice Department for engraving the date of appointment (determined by the actual day the president signs the commission) and for the signature of the attorney general and the placing of the Justice Department seal.” The department then arranges for expedited delivery of the commission document to the new appointee.

Once the President has signed the commission, the incoming Justice may be sworn into office.

This commission may not be signed and the individual appointed to the Court before the vacancy exists, avoiding the possibility of replacement nominees being lined up for non-existent vacancies such that they cannot be withdrawn by an incoming President; the next President would simply refuse to sign the commission.

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    Those halcyon days when a SCOTUS appointee could get an 87-9 vote to confirm!
    – JohnFx
    Jan 27 at 17:29
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    There's a certain irony to having this discussion about the replacement for Justice Stephen Breyer with him being the example for the answer.
    – Davidw
    Jan 28 at 3:55
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    If I understand correctly, that seems to suggest that the current Democratic President/Senate could preemptively confirm nominees to hedge against losing the Senate, right? e.g. in the Obama presidency, it sounds like they could have preemptively confirmed Garland or even someone more left-leaning. (putting aside how this would look politically)
    – blah
    Jan 28 at 5:47
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    @Davidw Even more irony - the chair of the senate judiciary committee which recommended Breyer was... Joe Biden.
    – CDJB
    Jan 28 at 9:41
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    @JohnFx: The problem is that the Supreme Court has managed to convince people to accept an unfounded leap of logic from "The Supreme Court's job is to say what the Constitution means" and its corollary "If the Supreme Court, while properly exercising its duties, says the Constitution means X, then the Constitution means X", to "If the Supreme Court says the Constitution means X, then X is the Supreme Law of the Land". The correct statement should be "If the Supreme Court says X, but X would be contrary to the Supreme Law of the Land, then the Court has failed in its duties".
    – supercat
    Jan 28 at 19:09
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Schumer's statement isn't really about making up some new procedure. He's telling his fellow Democratic senators that Republicans are going to try to stall this thing out in hopes it goes beyond July (when Breyer retires), maybe later, and maybe never happens. McConnell was famous for that stuff as minority leader during Obama/Biden. Schumer is saying the plan is to have the new judge in by July 1st (roughly -- Breyer is retiring at the end of the session, which goes through June), confirmations already take a long time, and if a Republican senator asks you "hey, I might vote for your gal if you add this step that takes a week or two", tell them no -- it's a trick that Democrats fell for for 8 years, and we're not getting fooled anymore.

Here's an MSNBC summary of a McConnell radio interview about how he kept Merrick Garland from getting on the court, allowing Trump to appoint Gorsuch, and his plans to repeat it:

McConnell told radio host Hugh Hewitt last year that he regards that obstruction as “the single most consequential thing I’ve done in my time as majority leader of the Senate.” And he suggested that he’d do the same for any potential vacant seat in 2024 if the GOP were to reclaim the majority after the midterms.

Schumer is saying that talk about waiting to start until the actual retirement (at the end of June), or Susan Collin's statement Thursday that the Amy Coney Barrett confirmation was so fast that we need to slow this one down, or McConnell's suggestion Wednesday that we need to negotiate for a mainstream appointee... he's saying all of that is bad-faith stalling. In the Senate you're not allowed to say anything even remotely disrespectful about another senator. I read "with all deliberate speed" as senate-speak for "with ACB you set the rules for a fast hearing by completely ignoring the other party -- that's what we're doing".

As far as pre-confirming for future vacancies, the next President would ignore it. The President selects nominees and Congress can't tell her how to do her job. That's basic separation of powers. However the pre-confirmation bill was worded, that's what it would come down to. It would be easier to just expand the court, and currently no one wants to do even that.

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  • Nice answer. As to pre-confirming nominees, I think @blah's idea was as a hedge against losing the Senate, not the Presidency. So there would be a few pre-confirmed candidates who the President could nominate and and place on the court without further Senate action, assuming the Republicans took back the Senate and McConnell refused to move any nominees forward. No idea if this is legal (it doesn't seem like it would be) but I think that's what they were suggesting.
    – divibisan
    Jan 28 at 22:28
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    @AlanDev But it's the opposite of obvious. The normal thing Obama/Biden did was negotiate when they didn't "have to" to get a bipartisan consensus, which always turned out to be a waste of time. It's tough to add all of the context to answers, but I think I can fit that in. Jan 29 at 17:31
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    @zibadawatimmy you're thinking about the rules that apply to acts of congress. Senate confirmation is not an act of congress. There's no "defaulting into validity," for example, and the appointment of the justice is a presidential act, not a congressional act.
    – phoog
    Jan 29 at 23:20
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    @OwenReynolds It very much does say that the President appoints, with advice and consent from the Senate. And not just Justices, but all public officers, federal judges, etc. The House is very explicitly not involved. Jan 30 at 5:03
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    @zibadawatimmy your inference that the senate's advice and consent expires at the end of the term is unfounded. A bill that hasn't passed congress by the end of the term is unfinished business of congress, and congress could adopt rules continuing unfinished business of the previous congress if it wanted to. Bills that have passed congress and been sent to the president are dealt with explicitly in the constitution. A vote of advice and consent, however, is not unfinished business. Of course, in practice the question is unlikely to arise as president will appoint the justice immediately.
    – phoog
    Jan 30 at 9:22

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