Can President Trump Appoint A Temporary Supreme Court Justice?

(Photo Credit: Sabina Becker)

Absolutely not. And the reason that he cannot do this is the same reason he cannot appoint Matthew Whitacker under the Federal Vacancies Reform Act to be interim Attorney General.

Our Constitution says the following in Article II, Section 2:

He (the president) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The underlined passage is the rationale for the Federal Vacancies Reform Act. Inferior officers—for example, certain Assistant Secretaries of Treasury--

can be filled by “the President alone.”

Now look at the text in red: “Judges of the supreme Court, and all other Officers of the United States.”

In effect, President Trump is saying that the Attorney General is not an Officer of the United States. 

But by law, the Attorney General is an officer of the United States—and is subject to the “advice and consent” provision of Article II.

If Trump’s view prevails, and if a vacancy occurs on the Supreme Court, what would stop him from filling the vacancy with a temporary appointment? 

Nothing. 

And that amounts to a constitutional coup, as does this appointment.
(Thanks to a colleague for a series of questions that stimulated this post.)