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“There is no question that a president may prospectively nominate, and that the Senate may prospectively confirm, Judge Jackson to the court ahead of Justice Breyer’s announced retirement. But the president cannot prospectively appoint Judge Jackson to the court prior to Justice Breyer actually retiring as the act of appointment is the legal mechanism by which a nominee is immediately vested with the judicial office in question. There is no possibility of putting off the effect of the appointment. To hold otherwise, as the OLC opinion does, raises gravely troubling issues regarding presidential discretion over the appointment process.”