President Trump has already appointed more Supreme Court justices than any president in 50 years. He now has a chance to be the first president since Eisenhower to appoint a majority of the justices on the Court. If he does, he would solidify his place as one of America’s most consequential presidents, and he would lock the Court’s liberals out of power for a generation.
If President Trump waits for a vacancy, his opportunity to secure his legacy may slip away. It is possible that neither Justices Alito nor Thomas will retire before the 2026 midterms. And three other justices, Chief Justice John Roberts and Associate Justices Sotomayor and Kagan, will soon be older than 65, the common retirement age, and could in theory vacate their positions between the 2026 midterms and the conclusion of President Trump’s term. If the Democrats win the Senate majority in 2026, they will likely block any appointments President Trump would make to the Court in the interim.
To guard against this, within the first 100 days and without a single justice announcing their retirement, Trump should nominate at least two candidates for the Supreme Court. Alternatively, he could make as many as five nominations for the justices aged 65 or older. President Trump can specify that these nominations will vest upon a vacancy actually arising, and the Republican Senate should swiftly confirm the nominees.
Appointing justices to not-yet-vacant seats is well within President Trump’s constitutional authority. And there is precedent for doing so as recently as 2022. The Office of Legal Counsel (OLC) has under Democratic presidents admitted that the president has the power to make prospective appointments. And exercising this power would (1) ensure that Senate Democrats have no ability to interfere with President Trump’s history-making Supreme Court appointments after the 2026 midterms; (2) take pressure off of Justices Alito and Thomas, allowing them to decide when to retire regardless of short-term political considerations; and (3) prepare the administration for an unexpected vacancy like the one that occurred in 2020.
The Constitution grants President Trump sweeping powers, and attendant discretion, over appointing members of the federal judiciary. Article II of the Constitution provides that the president
Shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.
The Constitution further states that the president “shall Commission all the Officers of the United States.” The Supreme Court has read these provisions to mean that the appointment of a Senate-confirmed officer, such as a Supreme Court justice, requires three steps: first, presidential nomination; second, Senate advice and consent; and third, presidential appointment. OLC has argued that each of these steps is completely “discretionary” in the hands of the relevant actor.
OLC has also determined that “prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office.” Indeed, since 1986, 12 people have been appointed prospectively to the Supreme Court: Chief Justices William Rehnquist and John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson, and failed nominee Harriet Miers. To put it another way, 12 people have been appointed by the president to the Supreme Court even though there was no existing vacancy on the Court.
As recently as 2022, President Biden nominated, and the Democratic Senate majority confirmed, then-Judge Ketanji Brown Jackson to fill Justice Breyer’s seat on the Court. But Justice Breyer had not yet retired, and thus his seat was not yet vacant. Then-Judge Jackson received her commission as an Associate Justice on April 8, 2022—months before Justice Breyer’s retirement went into effect on June 30. OLC confirmed that President Biden had the power to make this prospective appointment in an April 2022 memo. Jackson’s appointment did not vest until Justice Breyer’s retirement, at which point she officially became an Associate Justice of the United States Supreme Court.
This tradition of making prospective appointments before offices are vacant dates back to the Washington Administration. As Sai Prakash of the University of Virginia has argued, President Washington would “sometimes simultaneously nominat[e] A for office X and B for office Y, where A currently occupied office Y.” For instance, President Washington nominated John Sitgreaves to be a federal judge and William Hill to be a United States Attorney “in place of John Sitgreaves, if his nomination as Judge meets [the Senate’s] concurrence.” Later, President Grant appointed Edwin Stanton on December 20, 1869 to succeed Justice Robert Cooper Grier on the Supreme Court, even though Justice Grier’s retirement was not effective until months later. President Harding appointed George Sutherland to succeed Justice John Clarke on September 5, 1922 despite Justice Clarke’s retirement not taking effect until September 18. And somewhat more recently, President Kennedy appointed Judge J. Skelly Wright on March 30, 1962 to succeed Judge E. Barrett Prettyman, who did not retire until April 15.
Presidents have also appointed officers who do not then take the oath of office or assume the duties of that office for many months. For example, President Johnson appointed Congressman Oren Harris to a federal judgeship on August 12, 1965. But Congressman Harris did not become Judge Harris for nearly six months, only taking office on February 3 of the following year.
At least one leading constitutional law scholar, Sai Prakash, believes that the president has full discretion to decide when an appointment vests—that is, when an appointee assumes the duties of the office. Prakash writes that “because the Constitution never dictates how or when an appointment is made, an appointment vests however and whenever the appointer decides that it should vest.” Since Article II “grants the President the power to appoint, but [does] not decree when or how such appointments are to be made…[t]he natural supposition is that the [President] may decide such matters.” And, therefore, “the President may decide that an appointment vests with the Senate’s consent, upon some date certain, or when an office currently occupied becomes vacant.”
Prakash argues that the only limitation on the president’s ability to “exercis[e] his appointment power over time” is that, as long as the appointee has not yet assumed office, a successor “President may alter or eliminate the conditional appointment.” As long as the appointment has not vested, then President Trump or his successor would be able to rescind or alter the appointment. Prospective appointments would be cards in President Trump’s hands, ready for him to play if the need arises. But they would in no way bind him should he desire to make an alternative appointment.
Based on historical practice and the Constitution’s text and structure, President Trump may prospectively appoint Supreme Court justices, making these appointments conditional on the office becoming vacant. He should appoint at least two—but as many as five—Supreme Court justices.
The stated rationale could be that he is appointing replacements for any justices at or nearing the common retirement age of 65. The justices would then be free to retire at 11:59 on January 19, 2028, and be confident that President Trump’s appointees would take their seat. Though a successor president could rescind these appointments prior to their vesting, prospective appointments would guard against any Senate losses in 2026 and would increase the chances that President Trump could reshape the Supreme Court for a generation to come.