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Friday, January 06, 2017

Elevating judges and creating vacancies

On my prior post about the expired Garland nomination and the Scalia vacancy, my former professor Steve Lubet questioned why a Garland recess appointment would have created a vacancy on the D.C. Circuit.  After much research, I am unable to find a provision expressly barring judges from simultaneously holding seats on two courts or declaring that accepting a seat on a higher court constitutes a resignation from the lower court. It simply is and seems to always have been.

A Congressional Research Service report from earlier this year declares, without citation, "[a] judicial vacancy is created by an incumbent judge['s]  . . . elevation to a higher court." When nominating lower-court judges for a higher court, presidents since Washington have contemporaneously nominated someone to the lower court, although the nomination is contingent on the elevated judge being confirmed; if she is not, the contingent nomination is withdrawn because there no longer is a vacancy. And there is extensive political science and historical literature about Presidents elevating from the lower courts precisely because it allows them to fill two vacancies--the existing one on the higher court and the one they create on the lower court by moving a judge from the lower to the higher court.

But I cannot find a statutory basis for this. The relevant provisions regarding appointments or tenure make no mention of and none of the literature cites to anything. The assumption underlying the appointment process, seemingly for everyone, is (and always has been) that  elevation means resignation and creates that new vacancy.

If anyone knows a basis for this that I am missing, please share in the comments.

Posted by Howard Wasserman on January 6, 2017 at 03:18 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


Don't make me feel too old Howard.

There is an interesting ambiguity in making the vacancy "contingent on the elevated judge being confirmed," as it does not quite speak to recess appointments.

I can add a data point that supports your view, at least as a matter of practice. In 2001, Pres. W. nominated Mississippi district judge to the Fifth Circuit. The Democrats opposed him and ultimately filibustered the appointment. In 2004, Bush recess appointed Pickering to the Fifth Circuit, while the permanent nomination was still pending in the Senate (though lacking a vote due to the filibuster). Pickering resigned from his district court seat on the same day as the recess appointment, even though his permanent appointment was far from secure. When it became apparent that the filibuster would hold, and as the recess appointment neared its end, Pickering resigned from the Fifth Circuit.

Still, it is not obvious to me that Garland would have been required to resign from the D.C. Circuit following a recess appointment. Of course, we will never know, and there are much more serious matters to worry about now.

Posted by: Steven Lubet | Jan 6, 2017 6:25:25 PM

And doesn't Trump's "victory" prove that "It simply is and seems to always have been" is for people who dream too small?

Posted by: Joe Miller | Jan 6, 2017 7:00:09 PM

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