Is it constitutional for Obama—or any president—to nominate himself to the Supreme Court?

Could a big announcement be coming?
Could a big announcement be coming?
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This question originally appeared on Quora: Can a US president nominate him/herself for the US Supreme Court? Answer by Carter Moore, former congressional aide and federal employee.

He could and, moreover, contrary to other answers, it’s not actually clear if he’d be required to resign as president to take the position. Let’s look at the Ineligibility Clause of the Constitution:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [increased] during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

It only applies to members of Congress, which is why it’s under Article I (Section 6, Clause 2). It does not (explicitly) apply to any relationship between the executive and judicial branches of government.

Keep in mind that John Marshall, the famed chief justice responsible for the holiest of holy landmark decisions, Marbury v. Madison, was serving as secretary of state at the same time as chief justice of the Supreme Court (until Jefferson fired him).

What’s really weird about this is that several state constitutions at the time of the Constitution’s development and ratification did have explicit prohibitions on holding multiple offices, regardless of the branch. These were even referenced in the Federalist Papers (explicitly in No. 47), but were knocked back for having been inadequate—and specifically because they permitted too much encroachment by the legislative branches of the state governments (which the Framers were more wary of than executive or judicial encroachment).

Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. (No. 48)

Moreover, there’s nothing in the derivative federal laws that expressly disqualifies the president of the United States from serving simultaneously—either in Title 3 (the president) or Title 28 (the Judiciary)—much less requires his resignation (although if someone does find such a citation, please share).

You could make the case that the president’s oath of office, required by the Constitution…

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

…could be one such barrier—that a president who nominates himself to be a justice would not be acting in good faith to the Office of the president of the United States. Perhaps this would be reinforced by the Constitution and Congress’ further requirement that justices take an oath that they “will faithfully and impartially discharge and perform all the duties incumbent upon” them, and that their fidelity and impartiality would be severely compromised, if not impossible, by holding tenure in both branches; but still, these are not an explicit prohibitions.

The only institutionalized check on the president doing this is, in reality, our good faith in the legislature to not approve such a nakedly self-serving nomination (if not good faith on the part of the president in putting his own nomination forward in the first place). The Federalist Papers relied on as much when countering the opposition of anti-Federalists to the president’s nominating power, to the point that Hamilton was kind of a douche about it:

The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

To this reasoning it has been objected that the president, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. . . . Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. (No. 76)

Now, the law does require justices disqualify themselves “in any proceeding in which his impartiality might reasonably be questioned,” and “Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding,” which would cover a whole hell of a lot of cases that come before a still-sitting president who may serve on the Court.

As such, I suppose that in a scenario where the president-as-justice (justice-as-president?) refused to do so, impeachment proceedings would begin swiftly—but in a scenario where a Congress assented to the president serving concurrently as justice, well, who the hell knows.

I expect such an appointment would receive a swift legal challenge though, although its course would be severely compromised by the president serving on the Court.

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