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O'Connor's Resignation and Rehnquist's Death:

Some time back, we had a debate here (I think Jim raised it) that touched upon the legal effect of O'Connor's resignation letter. Here's my question--in light of the fact that there are two vacancies, could O'Connor simply announce today that she is withdrawing her earlier letter announcing that she was retiring effective upon the "nomination and confirmation of my successor" and simply state, "My resignation is now effective upon the nomination and confimation of Justice Rehnquist's successor"?

The term "Chief Justice" is not mentioned in Article III. I am not a Supreme Court jock so I'm not sure where that honorific arises (presumably in legislation somewhere or Court rules), but why couldn't they simply designate Stevens as acting chief, and allow O'Connor to stay on the Court effective on the confirmation of Rehnquist's successor, thereby keeping the Court at is full 9 member strength pending a replacement for Rehnquist?

What is the legal relevance of O'Connor's resignation letter, and could she simply withdraw or amend it prior to the appointment of "her" successor? Is Roberts truly "her" successor, or is the legally-relevant fact whether there is a vacancy on the court, as opposed to the notion of vacancies in particular seats? Isn't the legally-relevant act here the appointment of the successor, not the resignation letter itself?

More generally, it seems to me that there is a peculiar ambiguity in the law when legal obligations are to be triggered (or are thought to be triggered) by private actions, such as the submission of a resignation letter by a member of the Court. A few years ago I published an article on the Presidential Transition Act which asked the question about when an individual was to be named the "President-elect" for purposes of the Presidential Transition Act. The executive branch official in charge of making the determination suggested that one factor to determine would be whether the opposing candidate made a concession. If you will recall, in the 2000 election, Gore almost conceded late on election night, but then changed his mind. Would it have made a legal difference if he had actually conceded? If he did concede then later changed his mind, would that have undone the "President-elect" designation for Bush? I argue that it would not have, as there is no good argument for having the authority of naming the President-elect, a legal term, be determined by a private party (there one of the candidates).

Update:

SCOTUS Blog has more.

jurisprude:
Looks like Rehnquist's successor will be Roberts, however:

See here.

Wonder how that affects the debate.
9.5.2005 9:28am
nk (mail) (www):
Article I, Section 3, Paragraph 6 (impeachment of the President) states "the Chief Justice shall preside". The title likely comes from the law courts of England.
9.5.2005 9:42am
Tom from MD (mail):
Looks to me like Sandy is back in.

I'd rather have a known quantity for Chief Justice; specifically someone that we know to be either a moderate or someone we know will strive for concensus, being that a united Court is better for the nation. So while Scalia makes for a great read, I think he'd make a bad Chief. Roberts seems to have the right temperment, but really, we won't know until he's been on the court for a few years.

A young Justice has the same issue as a young Pope - he'd going to be around for a while, perhaps longer than we'd want. A young Chief Justice moreso.

All that said, he seems like a stand up guy, so maybe we'll be OK.
9.5.2005 9:42am
David Hecht (mail):
"If you will recall, in the 2000 election, Gore almost conceded late on election night, but then changed his mind. Would it have made a legal difference if he had actually conceded? If he did concede then later changed his mind, would that have undone the "President-elect" designation for Bush?"

I've always argued that the concession would have had no legal meaning: the election night returns have no bearing on the actual Presidential election, which is performed by the electors in December (indeed, the election night returns--being largely media artifacts rather than certified returns--would have no legal meaning even if this were not true).

The term "President-elect" doesn't even come into effect until after the electors have met, their votes recorded and sent to Congress, and their certification by Congress. The election-night concessions are merely a courtesy.

Put it another way: if a candidate for office conceded a close election based on the election-night returns, but the final returns overturned the apparent result, would he be barred from taking office by his earlier concession? Surely not: indeed, the law might compel him to take office, if he were formally elected to it, notwithstanding his earlier concession (though he might be allowed to resign it...).
9.5.2005 10:33am
DK:
The reason "they" can't just let Stevens be acting chief is simply that he is a liberal and could be expected to run the court in a way less pleasing to the Republican Party.

Remember that "they" in this case is the Bush administration (i.e. your and my opinion of Stevens is irrelevant for this analysis). Whatever you think of Stevens' merits, Bush's quick move to keep Stevens from running the court was to be expected.
9.5.2005 10:41am
Anti-Anti-Federalist Society (www):
Is Scalia wrong for chief justice because his strong opinions are indigestible by his colleagues thus inferring they are too thin skinned to competently deal with disagreement? Are all the liberal, left-wing, or activist judges nice and courteous in their opinions? Bush's opponents will scream and cry and yell no matter who he nominates. Pretty boy Roberts got attacked in an advertisement for stuff he didn't even do. They have shown no restraint. Why would they? They show no restraint so that George Bush will. So if not Scalia, why no Thomas? Why is a black man overlooked because he had a contentious hearing that was equivalent to a high tech lynching? He was nominated and confirmed. The second nominee better be exciting. Justice Janice Brown is exciting. Instead of eating up and destroying the takings clause it needs to be fully enforced and protect against regulatory takings. Brown will never be a Souter.
9.5.2005 11:55am
Goober (mail):
The term "Chief Justice" is not mentioned in Article III. I am not a Supreme Court jock so I'm not sure where that honorific arises ....

Check out Article I, Section 3. I find it odd that it would be mentioned there but not in Article III, but there you have it.
9.5.2005 12:35pm
PaulD:
Regarding the issue of whether a resignation letter may be rescinded, I would think that if the President has accepted the resignation, then it is final.
9.5.2005 1:02pm
Eh Nonymous (mail) (www):
Paul is right. Unless, of course, you have your fingers crossed when you hand-deliver the letter yourself. Or yell "psyche!" just as they're about to announce your resignation.

I think O'Connor's resignation is effective, upon the confirmation of _her successor_, viz the successor to her spot on the Bench who is nominated and confirmed to be an Associate Justice of the SCOTUS. If someone else dies soon, she could be on there for a long, long time.

My thoughts at this point are with the various Justices' families... and with mine.
9.5.2005 3:15pm
Edward A. Hoffman (mail):
Anti-Anti-Federalist Society wrote:

Pretty boy Roberts got attacked in an advertisement for stuff he didn't even do. They have shown no restraint.

Of course we all know that Republicans would never do such a thing to a Democrat, right? After all, the swift boat veterans assured us that they are "for truth".
9.5.2005 6:34pm