Isgur on Pre-Confirming Supreme Court Justices: Why Not All Nine?

On the November 5 episode of Advisory Opinions, taped the day after the Democrats’ midterm rout, Sarah Isgur raised a fascinating question. Justice Alito says he won’t retire. But could President Trump nominate, and the lame-duck Republican Senate confirm, a new Justice for a seat that isn’t vacant? Then if Alito is “hit by lightning or a bus,” or simply retires next August, the already-confirmed nominee steps in, and the new Democratic Senate never gets a say.

“Yes, appears to be the answer,” she said. Her reasoning: we already do this. Modern Justices typically retire effective upon a successor’s confirmation, so “we nominate and confirm people to the Supreme Court all the time for a seat that’s not open.” David French called it “a new nightmare unlocked,” though both doubt the Senate would actually go along. ¹

She’s on firmer ground than you might think. In 1986 the Justice Department’s Office of Legal Counsel concluded that the President may nominate, and the Senate may confirm, someone to an office in anticipation of a vacancy arising during the President’s term. Confirmation gives the nominee no rights, though, and if the vacancy never comes he can’t be appointed. ² In 2022 OLC went further, advising that President Biden could sign Ketanji Brown Jackson’s commission, completing her appointment, before Justice Breyer left. Biden did so on April 8, nearly three months before she took her seat. ³ Once the commission is signed, the Senate can’t take its consent back. ⁴

But OLC also recognized a limit: a President can’t use prospective appointments to tie the hands of his successors. And it never said how “anticipated” a vacancy has to be. An announced retirement, sure. But an ailing Justice? An old one?

So what are the limits? Why not go all the way: have the rump Republican Senate left in power for another couple months hold hearings for nine “Justices-in-waiting,” one per seat, confirm them all before January 3, and have Trump sign nine contingent commissions. Would this work, legally speaking?

Here are my guesses. First, by OLC’s own logic the scheme expires at noon on January 20, 2029, since any seat that opens after that belongs to the next President. So “all nine” really just buys insurance against the actuarial tables for 2027–28. More cleverly, it would let Alito or Thomas retire whenever they like before then with a successor already waiting.

Second, “anticipation” is the weak link. As far as I can tell, every previous prospective nomination rested on some sitting Justice’s announced departure. That includes LBJ’s 1968 nomination of Homer Thornberry to a seat that would open only if Abe Fortas became Chief Justice; it died when Fortas’s elevation did. ⁵ Consent banked against a vacancy that doesn’t exist, and may never exist, looks less like advice and consent than a futures contract. I suspect a Court that unanimously struck down Obama’s recess-appointment gamesmanship would balk at seating a Justice whose only claim is a two-year-old pre-confirmation. ⁶

Third, the politics: the GOP’s lame-duck margin may shrink as early as December 15, and moderates like Collins and Murkowski might well balk. ⁷ Even if it worked, Democrats couldn’t easily undo it now. Congress did shrink the Court by attrition in 1866 to deny Andrew Johnson any appointments, ⁸ but Trump would veto any such bill. What it would do is hand Democrats, in 2029, the best case for court-packing ever devised, wrecking the nine-seat Court that Isgur thinks this blue wave just saved. My prediction: it won’t happen. The odds of even one pre-confirmation without a retirement letter in hand are slim; the odds of nine are about zero.

Still, it’s telling we can’t easily point to any clear text forbidding the gambit. “Advice and consent” was supposed to be a check. If consent can be banked in advance against hypothetical vacancies, the check is just whatever the incumbents can get away with. As Spooner observed, the Constitution “has either authorized such a government as we have had, or has been powerless to prevent it.” ⁹ And the reason both parties scheme over these nine seats is judicial supremacy: we’ve let nine life-tenured federal lawyers have the last word on everything. Under Jefferson’s concurrent review, who sits in those chairs would matter a lot less. ¹⁰

Related and further reading:

• Sarah Isgur & David French, “Legal Ramifications of a Bluenami,” Advisory Opinions (Nov. 5, 2026): YouTube; SCOTUSblog episode page
• Office of Legal Counsel, “Nominations for Prospective Vacancies on the Supreme Court” (1986)
• Office of Legal Counsel, “Authority of the President to Prospectively Appoint a Supreme Court Justice” (2022)
• Jonathan H. Adler, “May the President Prospectively Appoint a Supreme Court Justice to a Seat That Is Not Yet Vacant?” (Volokh Conspiracy, 2022)
• Ed Whelan, “OLC Opinion on Prospective Appointment of KBJ Is Deeply Defective” (Part 2)
• Greg Stohr & Jordan Fabian, “Biden Signs Jackson’s Commission to Court Early in Unusual Move” (Bloomberg Law, 2022)
• Andrew Stanton, “Could Samuel Alito Miscalculation Trigger SCOTUS Fight in Lame-Duck Senate?” (Newsweek, Nov. 4, 2026)
• United States v. Smith, 286 U.S. 6 (1932)
• Kinsella, “Concurrent Review and Judicial Supremacy”
• Kinsella, “Federal Judges Aren’t Real Judges”
• Kinsella, “Libertarian Centralists”
• “Akhil Amar on Jury Nullification and State Nullification (Converse-§1983 Laws)” (PFS, Oct. 2026)

1. Sarah Isgur & David French, “Legal Ramifications of a Bluenami,” Advisory Opinions (SCOTUSblog, Nov. 5, 2026), at about 19:07–22:40; YouTube version here. On Alito’s statement that he has no plans to retire, see Andrew Stanton, “Could Samuel Alito Miscalculation Trigger SCOTUS Fight in Lame-Duck Senate?,” Newsweek (Nov. 4, 2026). [↩]
2. Office of Legal Counsel, “Nominations for Prospective Vacancies on the Supreme Court,” 10 Op. O.L.C. 108 (July 9, 1986). [↩]
3. Christopher H. Schroeder, “Authority of the President to Prospectively Appoint a Supreme Court Justice,” 46 Op. O.L.C. __ (Apr. 6, 2022); Greg Stohr & Jordan Fabian, “Biden Signs Jackson’s Commission to Court Early in Unusual Move,” Bloomberg Law (Apr. 19, 2022), noting that OLC never defined “anticipated,” e.g., whether it covers a Justice who is ill but has not announced a departure. For criticism of OLC’s reasoning, see Ed Whelan, “OLC Opinion on Prospective Appointment of KBJ Is Deeply Defective—Part 1,” Bench Memos (National Review, April 2022), and Part 2; see also Jonathan H. Adler, “May the President Prospectively Appoint a Supreme Court Justice to a Seat That Is Not Yet Vacant?,” Volokh Conspiracy (Apr. 15, 2022). [↩]
4. See United States v. Smith, 286 U.S. 6 (1932), holding that the Senate could not reconsider a confirmation after notifying the President and after he had commissioned the appointee. [↩]
5. See “Homer Thornberry,” Wikipedia. [↩]
6. NLRB v. Noel Canning, 573 U.S. 513 (2014). [↩]
7. See Stanton, Newsweek, cited above. [↩]
8. Judicial Circuits Act of 1866, ch. 210, 14 Stat. 209; see “Judicial Circuits Act,” Wikipedia. [↩]
9. Lysander Spooner, No Treason No. VI: The Constitution of No Authority (Boston: published by the author, 1870). [↩]
10. See Kinsella, “Concurrent Review and Judicial Supremacy,” StephanKinsella.com (Mar. 14, 2025); idem, “Federal Judges Aren’t Real Judges,” StephanKinsella.com (Aug. 2023). [↩]