[EL] Can President withdraw a Supreme Court nominee?

[Thomas J. Cares]

Then would it be a correct interpretation that POTUS could
concurrently nominate multiple candidates for 1 position, of which the
Senate could confirm any number, at which point POTUS could appoint one of
his choosing?

(Then Obama could have nominated a more-liberal alternative alongside
Garland, to scare republicans about who could get appointed if dems take
POTUS and Senate. (Though, I think he's more interested in making the
senate GOP look bad than getting Garland confirmed)).

Thomas Cares

On Saturday, May 7, 2016, Samuel Bagenstos <sbagen at gmail.com> wrote:

> 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
> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','law-election-bounces at department-lists.uci.edu');>
>> [mailto:law-election-bounces at department-lists.uci.edu
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','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
>> <javascript:_e(%7B%7D,'cvml','Douglas.johnson at cmc.edu');>
>>
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>
>
>
> --
> Samuel Bagenstos
> sbagen at gmail.com <javascript:_e(%7B%7D,'cvml','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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