[EL] Can President withdraw a Supreme Court nominee?

[Samuel Bagenstos]

Yes, the OLC memo applies to (and was specifically about) judicial
nominations:
https://www.justice.gov/sites/default/files/olc/opinions/1986/07/31/op-olc-v010-p0108.pdf
.

The way to think about it is this:  What the Senate is doing,
constitutionally, in a confirmation vote is giving its advice and consent
to the appointment.  But the president still retains the appointment power,
and the appointment is not made until the president signs the commission.
So the president can decide, at any point before signing the commission --
even after the advice and consent is given -- not to make the appointment.
Marbury involved the refusal to deliver an already-signed commission, so
the appointment there had already been made.

The contrary position rests on an assumption that an appointment is
essentially a contract between the president and the Senate, with the
nomination being the offer and the confirmation being the acceptance.  But
that's probably not the best way of reading the constitutional text, and
it's certainly not a necessary one.

(None of which is to say that President Obama would refuse to appoint Judge
Garland after a confirmation vote.  If the Senate confirms Judge Garland
during President Obama's term, chances strike me as basically 100% that the
president makes the appointment.)

On Fri, May 6, 2016 at 5:08 PM, John Tanner <john.k.tanner at gmail.com> wrote:

> As I recall, it applies to nominations generally.  It cited Marbury,   I’m
> going from memory, which I acknowledge is building on sand
>
>
> On May 6, 2016, at 4:00 PM, Brian Landsberg <blandsberg at PACIFIC.EDU>
> wrote:
>
> Does the OLC opinion extend to judicial nominations?  I would think that
> *Marbury *requires issuance of the commission.
>
> *From:* law-election-bounces at department-lists.uci.edu [
> mailto:law-election-bounces at department-lists.uci.edu
> <law-election-bounces at department-lists.uci.edu>] *On Behalf Of *John
> Tanner
> *Sent:* Friday, May 06, 2016 5:14 AM
> *To:* Douglas Johnson
> *Cc:* <law-election at uci.edu>
> *Subject:* Re: [EL] Can President withdraw a Supreme Court nominee?
>
> Yes. The president has full control over all nominations just as he has
> control over appointments.  There's an OLC opinion that the president can
> refuse to issue a certificate (or whatever the term is) even after
> confirmation.
>
> Sent from my iPhone
>
>
> On May 5, 2016, at 11:55 PM, Douglas Johnson <djohnson at ndcresearch.com>
> wrote:
>
> A process question for those who know more than me about this process
> (which is just about anyone subscribing to this list):
>
> Can the President stop the Senate from approving a nominee by withdrawing
> that nominee? Or if he tries to do so, could the Senate approve his
> appointment anyways?
>
> Obviously Presidents have withdrawn nominees in the past, but I wonder if
> that was constitutional or simply both the White House and the Senate
> allowed to happen, since I believe it’s only happened when the Senate was
> refusing to act.
>
> Douglas Johnson
> Fellow, Rose Institute of State and Local Government
> Claremont McKenna College
> Douglas.johnson at cmc.edu
>
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-- 
Samuel Bagenstos
sbagen at gmail.com
Twitter: @sbagen
My University of Michigan homepage:
http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
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