[EL] Can President withdraw a Supreme Court nominee?

[Samuel Bagenstos]

I do think that would be constitutional, yes, though I doubt it would be a
very effective strategy.

FWIW, I think President Obama (a) thinks Judge Garland is the best person
for the job; (b) thinks he's the nominee most likely to be confirmed, even
if the likelihood isn't very high; and (c) wants him to be confirmed.
On Sat, May 7, 2016 at 12:46 AM Thomas J. Cares <Tom at tomcares.com> wrote:

> 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>
>> 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] *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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>>>
>>>
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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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