At Bench Memos, there is an interesting discussion of whether the Senate can confirm Justice O’Connor’s replacement until her resignation is effective. Matthew Franck writes:
Ed Whelan speculates about the effects of a delay in Judge Roberts’s confirmation, and along the way he notes that Justice O’Connor’s “resignation is effective only upon her successor’s confirmation.” I’m not sure that is altogether true. It may be what O’Connor said, but that doesn’t make it so. Some legal scholars I know had an e-mail discussion of this a while back, and here’s what I conclude from it.
O’Connor’s July 1 letter to President Bush declared that it was “to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor.” If those last nine words are understood as setting a condition on her retirement, such that she continues in office and would take part in the next October Term of the Court if Roberts’ confirmation were delayed or defeated —- or even if Bush gave Roberts a recess appointment, since that would lack “confirmation” —- then O’Connor has created a classic Catch-22.
Here’s why. Title 28 of the United States Code, section 1, reads: “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.” Article II, section 2 of the Constitution tells us that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” For the president to appoint, there must be a vacant seat, whether just vacated or newly created. No tenth seat has been created. If Justice O’Connor remains in her seat today, then there is no vacancy among the nine available seats, and President Bush’s nomination of Roberts is a legal nullity. And since there is no legally cognizable nomination for the Senate to act upon, there is no possibility of a confirmation, and Justice O’Connor has been pulling our legs and isn’t leaving the Court after all. What a fun three weeks we’ve all had for nothing!
But of course this is not how the world understands the present situation, and rightly so. President Bush has considered the O’Connor seat vacant since July 1, and has duly nominated Roberts to fill it, and the Senate is poised to go through the confirmation process. These actions speak louder than O’Connor’s words, and it is those words that should be considered a legal nullity. There is in fact a vacancy, and she cannot set a condition that would make it otherwise, remaining on the Court as one of the associate justices. Come what may, she’s off the bench, and has been since July 1. I never thought Justice O’Connor understood legal principles with any particular clarity, and she departed from the Court in just such a way as to prove me right.
Ed Whelan thinks there is no problem, so long as there is a vacancy when Bush makes the appointment, which there would be since O’Connor’s resignation is effective at confirmation.
There is another argument to be made: precedent. Chief Justice Earl Warren announced his resignation in 1968 (with the hope that LBJ would be able to replace him), to be effective when his replacement was confirmed, which didn’t happen until June 23, 1969. So Warren officially resigned the same day that CJ Warren Burger was sworn in.
Franck argues that O’Connor has been off the bench since July 1. With Warren having served for essentially a full term after having tendered his resignation, I think that O’Connor would be allowed to serve until her replacement is confirmed, whatever one thinks of the merits of Franck’s statutory analysis.
UPDATE: Among the bloggers who have linked to this are Tom Smith at the Right Coast and Armen at DeNovo. So far I’m sticking with my original position — that the Earl Warren precedent would govern, that a justice may resign contingent on his or her replacement’s confirmation.
Yet I would expect that this problem must occur with other presidential appointments, so there should be a substantial number of non-judicial precedents that might push the answer strongly one way or the other.
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