It's Official:
Justice Sandra Day O'Connor has announced that she is retiring. A few more or less serious thoughts, which I plan to add to throughout the morning:
1. Oddly, Justice O'Connor's letter does not mention the all-important question: what is to happen to Sasha Volokh? Will he get picked up by another Justice? Will he come back to the Volokh Conspiracy? So far the Associated Press hasn't covered this angle yet.
2. The mystery of the missing 4th SOC clerk is now explained; it was O'Connor herself who was retiring.
3. The big question now is whether the Chief will announce soon as well. I'm not sure whether SOC's retirement makes the Chief's more or less likely — any thoughts?
4. Interesting that after years of SOC retirement rumors, she retires after a Term in which most people were looking to another Justice to retire.
5. When courts apply the "reasonable observer" test in Establishment Clause cases, will they now call up Justice O'Connor in Arizona to ask her what she thinks?
6. My guess is that we'll have to wait to find out who the Administration will nominate to replace Justice O'Connor. I assume that the Administration's next move depends on whether SOC is the only Justice to retire.
7. Supreme Court advocacy in the last decade has focused a great deal on trying to understand the mind of SOC, as she was the swing vote in many big cases. That learning has just become obsolete.
8. Even if Justice O'Connor is gone, we may still hear her name in 1 First Street when lawyers accidentally call Justice Ginsburg "Justice O'Connor."
9. O'Connor's retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O'Connor. Let's assume for now that O'Connor is replaced by a consistently more conservative Justice; even if that's true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it's often hard to tell whether a new Justice will vote consistently one way or another.
10. We're likely to hear a lot about the future of Roe v. Wade in coming weeks and months. The common wisdom, assuming no shifts in votes from past cases, is that the 8 remaining Justices include 5 votes for Roe (RBG, SGB, DHS, JPS, AMK) and 3 against (AS, CT, WHR). On the constitutionality of partial-birth abortion bans, the common wisdom is that the 8 remaining Justices split 4 to 4, with Justice Kennedy switching as seen by his vote in Stenberg v. Carhart.
11. My understanding from press reports is that O'Connor is staying on the Court until her replacement is confirmed. Bush gave some comments from the White House a few minutes ago, and my recollection is that he said he planned to nominate a replacement such that the replacement would be confirmed by the time of the new Term in the fall. Of course, that assumes a timely confirmation process, which may or may not happen.
12. O'Connor's retirement is a gift to all the commentators who were trying to come up with profound thoughts about the just-completed Supreme Court Term. The Term was actually pretty boring in the end; while there were some interesting cases that offered the Court the opportunity to venture out in some new directions, the Court mostly ended up reaffirming the status quo. Now talking heads can ruminate about Justice O'Connor and her retirement rather than the cases the Court decided.
13. According to Dana Bash, reporting at CNN, the White House found out about the possible retirement yesterday afternoon, when the Supreme Court Marshal's Office informed the White House Counsel that one of the Justices would be sending a letter to the White House today. The White House didn't know O'Connor was the Justice making the announcement until this morning.
1. Oddly, Justice O'Connor's letter does not mention the all-important question: what is to happen to Sasha Volokh? Will he get picked up by another Justice? Will he come back to the Volokh Conspiracy? So far the Associated Press hasn't covered this angle yet.
2. The mystery of the missing 4th SOC clerk is now explained; it was O'Connor herself who was retiring.
3. The big question now is whether the Chief will announce soon as well. I'm not sure whether SOC's retirement makes the Chief's more or less likely — any thoughts?
4. Interesting that after years of SOC retirement rumors, she retires after a Term in which most people were looking to another Justice to retire.
5. When courts apply the "reasonable observer" test in Establishment Clause cases, will they now call up Justice O'Connor in Arizona to ask her what she thinks?
6. My guess is that we'll have to wait to find out who the Administration will nominate to replace Justice O'Connor. I assume that the Administration's next move depends on whether SOC is the only Justice to retire.
7. Supreme Court advocacy in the last decade has focused a great deal on trying to understand the mind of SOC, as she was the swing vote in many big cases. That learning has just become obsolete.
8. Even if Justice O'Connor is gone, we may still hear her name in 1 First Street when lawyers accidentally call Justice Ginsburg "Justice O'Connor."
9. O'Connor's retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O'Connor. Let's assume for now that O'Connor is replaced by a consistently more conservative Justice; even if that's true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it's often hard to tell whether a new Justice will vote consistently one way or another.
10. We're likely to hear a lot about the future of Roe v. Wade in coming weeks and months. The common wisdom, assuming no shifts in votes from past cases, is that the 8 remaining Justices include 5 votes for Roe (RBG, SGB, DHS, JPS, AMK) and 3 against (AS, CT, WHR). On the constitutionality of partial-birth abortion bans, the common wisdom is that the 8 remaining Justices split 4 to 4, with Justice Kennedy switching as seen by his vote in Stenberg v. Carhart.
11. My understanding from press reports is that O'Connor is staying on the Court until her replacement is confirmed. Bush gave some comments from the White House a few minutes ago, and my recollection is that he said he planned to nominate a replacement such that the replacement would be confirmed by the time of the new Term in the fall. Of course, that assumes a timely confirmation process, which may or may not happen.
12. O'Connor's retirement is a gift to all the commentators who were trying to come up with profound thoughts about the just-completed Supreme Court Term. The Term was actually pretty boring in the end; while there were some interesting cases that offered the Court the opportunity to venture out in some new directions, the Court mostly ended up reaffirming the status quo. Now talking heads can ruminate about Justice O'Connor and her retirement rather than the cases the Court decided.
13. According to Dana Bash, reporting at CNN, the White House found out about the possible retirement yesterday afternoon, when the Supreme Court Marshal's Office informed the White House Counsel that one of the Justices would be sending a letter to the White House today. The White House didn't know O'Connor was the Justice making the announcement until this morning.
Also, for all the posts on this blog that amount to "behold the power of the blogosphere," I find it a bit ironic that now it's official because it's in the AP.
Could be that bloggers are just better at opinions than facts.
Ginsberg, on the other hand, was with the majority on almost every single big case, including all the big 5-4 ones outside of the 10-commandments split.
Apparently no one can tell any of them apart
My prediction is that the filibuster will be the first casualty in this political fight. Under the old rules, I'd expect that this nomination might take two years. Now, with the issue and the threats already on the table ...
Factors, in my mind, include that while O'Connor's replacement may be more important with regard to swing votes, Rehnquist's is obviously important for leadership and court dynamics. Bush will obviously be under some pressure to replace O'Connor with another woman - Edith Brown from the 5th Circuit seems to be a relatively uncontroversial appointment. Keeping the powder dry for the big fight for Chief?
It seems to me, also, that while Bush may want to appoint a less extreme candidate in order to save political capital and avoid a huge fight, doing so would also give Democrats the chance to look "statesmanlike" by avoiding any filibuster threats, etc. I figure that there are some of his advisors that will dislike that option for that reason.
But don't expect them to be nice while on the playground. There is probably already a mad scramble to get on the various talk and opinion shows.
Earlier this week, I read that O'Connor would retire today, and that Justice Ginsburg was planning to retire in the fall.
O'Connor dissented in the Texas 10 Commandments case. However, the more general point you make is a good one, I think. O'Connor was in dissent on more "important" cases this term than in any term that I can remember. Besides the Texas 10 Commandments case, there was the eminent domain (Kelo), the commerce clause power case (Raich), the wine shipment cases (Granholm v. Heald, etc.), the federal sentencing cases (Booker and Shepherd), and the death penalty for juveniles case (Roper). And that's not counting the ADEA disparate impact case (Smith v. City of Jackson), where her "concurrence in judgment" was a dissent on the most important issue involved (the existence of a disparate impact claim under the ADEA). I don't precisely know the reason for this, but aside from Kennedy joining the liberals (as in Roper), we've seen a lot more "cross-ideology" majorities this term (a la the Apprendi-type cases).
So is it possible that O'Connor doesn't want to be on the Court when she can't be the deciding vote on the big issues? (Not that anything this term was all *that* big or important.) And where are all the pundits who insisted that the Court's decision to take another abortion rights case meant that O'Connor wasn't going to retire?
The point is that O'Connor seems healthy and able to continue into the near future, so if the Senate filibusters her replacement she can simply wait them out. But Rehnquist's health is dicey and if they filibuster his replacement we could be in for an 8-member Court for awhile.
Everyone focuses on the Senate obstructionism as being aginst the president, but I would not underestimate the anger that judges feel at the Senate for interfering with them getting their work done. Perhaps O'Connor sees this as a way to draw fire away from the Chief, and to do an end run and try to make it harder for the Senate to hold the Court hostage. We see the justices when they disagree, but when it comes to protecting the Court from the Senate, or from any other threat, they will stand together and fight back.
cathy :-)
PS--I did say that I would serve until my successor is confirmed. By then, Sasha will probably be collecting his pension while bouncing his grandchildren on his knee.
What held true regarding circuit court appointments may not hold for the first SCOTUS nomination in many years. A nomination of someone of Janice Rogers Brown's caliber might not hurt the Dems a bit.
No one's been curious, that I can see, whether Bush will be happy leaving Ginsburg the only woman on the Court. Is America ready to settle for one "token woman" among 9 justices?
But that's exactly my theory. Filibuster the first nomination (O'Connor's replacement) in many (11?) years and it might not hurt them a bit. But the second filibuster (Rehnquist's replacement) strains the public's patience far more. Especially after the lower court judges, and Bolton. That's the problem with tantrums -- they tend to lose their effectiveness after awhile.
cathy :-)
And as to the question of replacing Justice O'Connor with another woman, is there any fear that her seat will become "the woman's seat" (and Thomas's seat "the black seat", etc.)?
But the second filibuster (Rehnquist's replacement) strains the public's patience far more.
But I thought it was widely agreed that Rehnquist's successor was less of an issue, because R. votes consistently on the right. (Dividing the court into the 4-justice left, the 3-justice right, and the unpredictable Kennedy &O'Connor.) The Dems would have much less reason to filibuster a Rehnquist replacement.
That said, perhaps O'Connor's leaving at this time has a tactical advantage for the Repubs. If R. went first, the Dems could go along with his replacement, thus gaining credibility if/when they oppose the nomination of some kook to O'Connor's seat.
Does anyone have any thoughts on why it makes a difference for Bush's prospective nominee that it's O'Connor retiring and not Rehnquist? (other than the chief angle)
I suppose it would be easier for the Dems to swallow if O'Connor's replacement was more "O'Connor-like," but I don't think that inertia is what Bush is after.
On the earlier comment re: leaving the court with Ginsburg as the only woman, are there any other prospective female nominees being discussed other than Janice Rogers Brown and the two Ediths from the Fifth Circuit? Ann Williams is on the Schumer list (in the link above). Anyone else?