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Justice Ketanji Brown Jackson was confirmed to the Supreme Court on Thursday afternoon by a 53-47 Senate vote – but she is not yet a judge.
Jackson will have to wait until late June or early July before he can sit on the Supreme Court because Justice Stephen Breyer still sits there. Breyer did not resign immediately when he announced his retirement in January, but instead said he would leave the court at the end of his current term.
“I am writing to tell you that I have decided to retire from regular active judicial service as an Associate Justice of the Supreme Court of the United States,” Breyer wrote to President Biden. “I intend for this decision to take effect when the court rises for summer recess this year…assuming that by then my successor will have been named and confirmed.”
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Breyer’s decision gave Biden and Democrats plenty of time to choose and confirm his successor, which they did on Thursday with nearly three months to spare.
It is not unprecedented for a judge to be confirmed while his predecessor is still in his seat. This notably happened on the court that Jackson is leaving, the DC Circuit Court of Appeals, in 2020 when Judge Justin Walker was confirmed in June, months before his predecessor, Judge Thomas Griffith, took over. his retirement.
But it’s rare for a Supreme Court justice to wait that long to be sworn in after being confirmed.
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Justice Amy Coney Barrett was sworn in just before the 2020 presidential election, when she filled a vacancy following the death of Justice Ruth Bader Ginsburg. Judge Brett Kavanaugh was also sworn in immediately. He replaced Justice Anthony Kennedy who, like Breyer, retired at the end of a term on the Supreme Court – except that Kennedy did not announce his retirement until the end of the Court’s term.
Justice Neil Gorsuch took the seat of the late Justice Antonin Scalia immediately after his confirmation and was sworn in soon after the Senate voted. That seat has been open for more than a year because Senate Republicans have not allowed a hearing on Obama’s nominee Merrick Garland.
The most recent situation that mirrors what Jackson is going through may be the confirmation of Judge Samuel Alito under former President George W. Bush.
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Justice Sandra Day O’Connor announced her retirement in the summer of 2005, and Bush appointed current Chief Justice John Roberts to replace her. But soon after, former Chief Justice William Rehnquist died, and Bush replaced Roberts in his place.
Bush then tried unsuccessfully to confirm former White House lawyer Harriet Miers to replace O’Connor, who remained on the bench while a search for her successor was made. The Senate finally confirmed Alito in the winter of 2006.
But still, O’Connor resigned immediately after Alito’s confirmation.
Despite the unusual nature of her situation, in three months Biden will sign Jackson’s judicial commission and she will be sworn in as the first black woman to serve on the United States Supreme Court.
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“It’s a long road to equality. We keep walking on it,” Senate Majority Leader Chuck Schumer, DN.Y, said Thursday. “Sometimes you take a step back. Today we took a giant step forward. We are thrilled.”
Fox News’ Chad Pergram contributed to this report.