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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.
anonner (mail):
Ladies and gentlemen, start your engines. Could be a fun summer.
7.1.2005 11:44am
rbj:
This must be the year for Sandra O'Connors to retire.
7.1.2005 11:44am
Phil (mail):
Noooo. My only hope is Rhenquist retires too and we can have some sort of deal in the Senate, a moderate to replace O'Conner and a conservative to replace Rhenquist, to keep the balance of the Court the same. But I'm sure that won't happen.
7.1.2005 11:50am
Mase (mail):
Phil -- something ala West Wing a season or so ago? (the dual nomination deal)
7.1.2005 11:52am
WB:
I suppose that the real question is what happens to Sasha now?

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.
7.1.2005 11:57am
Justin (mail):
Garza will replace O'Connor. Oddly enough, this won't have as much of an impact as one would think. If one looks at the big 5-4 cases from this year, O'Connor was only part of the five in one of them...the Texas 10 Commandments case, which was the less important of the two.

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.
7.1.2005 11:58am
AK:
Phil: why should "the balance of the Court" remain the same? The Court got to the way it was today through the political process, and its current makeup is as arbitrary as each of its previous makesups. Did you share the same concerns for "the balance of the Court" when Bill Clinton replaced Byron White with an ultra-liberal Ruth Ginsburg? Don't make me laugh.
7.1.2005 12:04pm
truetanus (mail):
Well to SOC I now say happy retirement. The white lace cravat look will be a big hit in SoFla, or Arizona. She deserves the respect of all who have served on that wild and wacky institution. Can I get a round of applause?
7.1.2005 12:07pm
LiquidLatex (mail):
It is pretty sad she won't ever "officially" explain some of her uniqueish positions and methods for determining contitutionality of the law.
7.1.2005 12:08pm
WB:
A thought on the Sasha question. Her retirement is effective upon confirmation of her successor. Any chance that'll take forever?
7.1.2005 12:15pm
jawsome:
That Baltimore prosecutor is going to have the worst retirement party ever.
7.1.2005 12:26pm
anonymous:
Even if Justice Ginsburg retires, we may still hear Justice O'Connor's name... Brian Williams, in his introduction of Prof. Tribe following Bush's speech (about 20 minutes ago) noted that Prof. Tribe isn't always in agreement with "Madame Justice Kennedy"

Apparently no one can tell any of them apart
7.1.2005 12:33pm
Baronger (mail) (www):
O'Connor apparently hand delivered her notice to the President. That was classy of her. Bush said that they had a nice discussion. My respect for her goes up another notch. She will be missed; a new page in the history of the nation has been turned. The ship of state has weathered political storms before, and it will weather this one. Batten down the hatches, and rig for storm. The skies are ruddy, let the sailors be warned.
7.1.2005 12:36pm
Baronger (mail) (www):
WB-A thought on the Sasha question. Her retirement is effective upon confirmation of her successor. Any chance that'll take forever?

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 ...
7.1.2005 12:39pm
GT (mail):
Guess what...the Washington Post is already painting her as a liberal. A very leftist liberal. Sen. Frist on the other hand, has claimed her as a conservative! I think this means war in the District.
7.1.2005 12:41pm
RStutes (mail):
I suspect that the timing is part of some sort of plan that includes at least one other retirement. I am not sure if it's the Court's plan (the Stanford graduates conspire?), or the White House's. I also don't know if it is a plan to fight the big fight first or second.
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.
7.1.2005 12:46pm
w. lyle stamps, esq. (mail) (www):
I'm no insider, but my understanding (please correct), was that retiring justices often heard cases as judges sitting by designation in the district or circuit where they retired; in which case, they usually retain the clerks already hired.
7.1.2005 12:50pm
anonymous:
any Congressional recesses coming up soon?
7.1.2005 12:56pm
GT (mail):
they will be on recess next week.
7.1.2005 12:59pm
Gentle Reader:
If Rehnquist stays, O'Connor will have been the first justice to come and go within the span of his 33 years on the Court (Powell was appointed at the same time as Rehnquist). How's that for stability?
7.1.2005 1:02pm
curious clerk:
will someone please talk more about why there is more buzz about Judge Garza today than in the last few weeks? Is there a good possibility that he is the nominee to replace O'Connor?
7.1.2005 1:03pm
w. lyle stamps, esq. (mail) (www):
See 28 U.S.C. 294(a):


Any retired Chief Justice of the United States or Associate Justice of the Supreme Court may be designated and assigned by the Chief Justice of the United States to perform such judicial duties in any circuit, including those of a circuit justice, as he is willing to undertake.
7.1.2005 1:05pm
Baronger (mail) (www):
GT -- they will be on recess next week.

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.
7.1.2005 1:07pm
GT (mail):
Count on it.
7.1.2005 1:15pm
Wurly:
So now Justice Kennedy will have no one to play with on the swings each June.

Earlier this week, I read that O'Connor would retire today, and that Justice Ginsburg was planning to retire in the fall.
7.1.2005 1:16pm
Bob Flynn (mail):
Law of unintended consequences -- if President Bush picks a hard-core conservative replacement (like Luttig or Roberts) for the purpose of making the court more conservative, watch for Kennedy to swing left towards Souter for a 5-4 liberal, majority coalition.
7.1.2005 1:30pm
jawsome:
GT: Time to write a nice letter to Bush telling him that a recess appointment of myself on the Supreme Court would do a great deal for my resume. He doesn't even need to put me up for approval by the Senate once they reconvene.
7.1.2005 1:48pm
Cheburashka (mail):
How's Stevens' health?
7.1.2005 2:02pm
guest:
On the bright side of all this, Justice Breyer will now be able to move from the far right of the bench to the far left -- literally.
7.1.2005 2:39pm
Michael @ CIR (mail):
Justin,

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?
7.1.2005 4:19pm
Pete (mail):
I'm hearing a lot about Mukasey as well. I think he'd be a good choice. It's time to reign in the Supremes.
7.1.2005 4:56pm
cathyf:
Just speculation, but is it possible that O'Connor is trying to finesse out a confirmation battle? So Bush appoints an excellent replacement with impeccable conservative credentials. The Senate Dems go into hysterical blockade mode. Rehnquist, who is not well, then announces his retirement. Or he dies. The Dems finally realize that the public is really tired of this crap, and they had better not push their luck any further. The Chief's replacement is confirmed quickly and without a lot of controversey. O'Connor continues to serve while the Dems continue to filibuster her replacement.

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 :-)
7.1.2005 5:02pm
David Hardy (mail) (www):
Sasha is fortunate in that DC has a very good unemployment compensation program. I have already created a "Will Clerk for Food" sign which he can use until his application goes through.

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.
7.1.2005 5:12pm
Anderson (mail) (www):
The Dems finally realize that the public is really tired of this crap, and they had better not push their luck any further.

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?
7.1.2005 5:34pm
Wright (mail):
As I hear it, Mukasey is on the short list but not at the top. He'll get consideration, but whether he'll actually be the nominee is questionable. He has strong support from conservatives but it might not be enough to overcome the top candidates: Brown and Gonzalez.
7.1.2005 5:48pm
stevenjens (mail) (www):
If only we can convince the President to nominate Eugene Volokh as her replacement, Sasha should be all set.
7.1.2005 6:02pm
cathyf:

The Dems finally realize that the public is really tired of this crap, and they had better not push their luck any further.

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.


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 :-)
7.1.2005 6:09pm
myalterego:
Another good aspect of this for Justice Breyer - he no longer needs to open the door and get Justice Scalia's coffee when the justices conference.

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.)?
7.1.2005 6:40pm
Robert Schwartz (mail):
As for the Sasha question, a friend of mine was hired as a clerk by O'Connor's predecessor (Stweart) who then announced his retirement over the summer. O'Connor hired the clerks the predecessor had selected. But, I do not think there is any precedent or rule that she was following.
7.1.2005 7:21pm
Anderson (mail) (www):
Thomas's seat *is* "the black seat"; he replaced Marshall, no?

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.
7.1.2005 7:31pm
WB:
Mukasey might get 100 votes in the senate and finish this mess quickly.


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?
7.1.2005 10:36pm
Adam Partridge (www):
Interesting post. Here are my thoughts about SOC...
7.1.2005 11:55pm