Purely as a hypothetical, assume that Sandra Day O’Connor decides she doesn’t want to leave after all. For whatever reason. Could she back out on her resignation? What would happen if she tried?
The important sentence from her letter of resignation reads “This is 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.” I’m just not sure if that’s enough to clean out her desk and change the locks on her if she tried to say “You know… I think I’d rather stick around” tomorrow.
I agree with Cliffy. The “resignation” was conditional, and could be withdrawn anytime before the triggering event (the confirmation of her successor). I don’t know of any requirement in Federal law that a resignation must be “accepted” before it takes effect.
That said, I think Judge Alito would be *really * pissed…
Is the text of Justice O’Connor’s resignation letter available on the net? Even if it said in detail that she would resign as soon as a successor was confirmed, would that be binding on her? How could it be—isn’t impeachment the only way to remove a Justice?
What would happen if Judge Alito (or anyone esle) is confirmed by the senate, but later in the afternoon Justice O’Connor has this hypothetical change of heart? Could Chief Justice Robert refuse to swear him in until she resigns? Is the swearing in process necessary to becoming a justice? Wouldn’t that be a check on the power of confirmation—i.e. not swear in a justice the CJ disapproves of? What if he is sworn in before O’Connor changes her mind about resigning? Does that mean that there would be ten sitting justices? Did the legislation passed in the wake of Roosevelt’s court-packing incident cover such an expansion of the court? Would congress have to act in order to give Bush[sup]*[/sup] the power to appoint another nominee to maintain an odd number of Justices on the court?
[sup]*[/sup]Please respect the standards of GQ and refrain from emotionally/politically charged reactions to the prospect of a third Bush nominee.
O’Connor’s letter is easy enough to find on the web but since it’s so short and presumably not under copywrite, I trust the mods won’t mind my repeating it here:
*Dear President Bush,
This is to inform you of my decision to retire from my position as Associate Justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor. It has been a great privilege, indeed, to have served as a member of the Court for 24 terms. I will leave it with enormous respect for the integrity of the Court and its role under our constitutional structure.
After the resignation of William O. Douglas in the 70s he still tried to hang around. I don’t know if he sat in on oral arguments and conferences, but he was essentially acting as a justice still, despite having had a severe stroke and the beginnings of dementia. A friend of mine was a very good friend of Douglas and was tasked with getting him to really retire. Fortunately, Douglas was confined to a wheel chair and could only verbally assualt my friend. Even with stroke impaired speech it was a most unpleasant task, but successful with the help of Douglas’ pretty young wife.
As I understand it, current statute law, in effect since 1869, calls for a Supreme Court consisting of the Chief Justice and eight Associate Justices. There is presently no vacancy on that court. What there is, is one Justice (O’Connor) who has formally indicated her wish and intention to retire effective on the nomination and confirmation of her successor. So no one would be entitled to swear Mr. Alito in as an Associate Justice in the hypothetical situation suggested in this thread: there’s no vacancy for him to fill.
As for whether Mr. Alito’s (or someone else’s) confirmation is a “trigger” for Mme. Justice O’Connor’s resignation to become effective, that would be, in the first instance, a matter for her to decide in propria persona (as an official-in-the-process-of-resigning, not as a justice) – would she step gracefully out of the way, regardless of whether circumstances change to make her wish not to resign (if her husband, whom she’d resigned now in order to be with as he battles Alzheimer’s, suddenly dies, for example)? – and in the absence of something definitive from her, it would become a matter to be decided under the Supreme Court Rules and Procedures by them (since it would become a justiciable question, and no lower court would have authority).
Congress retains the right to re-size the Court at any time, by statute, though there is a 19th century custom that any downsizing takes effect on the resignation or retirement of sitting members. There is absolutely no requirement that the court have an odd number of members, and in fact it started with six.
Oh, one thing I missed. While it’s customary for the Chief Justice to swear in Presidents, Vice Presidents, and Associate Justices (and for the senior Associate to swear in a new Chief), there is absolutely no requirement that it be him who does so. Several Presidents were sworn in by a variety of other people authorized to take oaths, and no doubt at least a few justices were too, though I have no cite to demonstate the latter.
In any case, the Chief Justice would have no authority to refuse to take an oath from someone he disapproves of – it’s not a magisterial act – and in the event that he did refuse, the oath could be validly taken by someone else having authority under federal or any state law, who would then get his/her 15 minutes of fame. The mayor of the new justice’s home town, for example, presuming he can receive the taking of oaths under the laws of his state.
There was a similar issue in one of Tom Clancy’s novels. There was a plot point that the Vice President had submitted his letter of resignation (which is apparently done to the Secretary of State) and the new Vice President had been nominated, confirmed by the Senate, and was sworn in (this all happened in a single afternoon). Then seconds later terrorists killed the President, who was succeeded by the new Vice President. Then the old VP said “Wait a second, I didn’t really resign. My resignation hadn’t been officially recorded yet. So I was still Vice President when the President was killed and I should be President now.”
I’m actually leaving out a lot of the details here. And Tom Clancy has long left behind the time when he could be considered a credible source for accurate beckground information.
I heard it on CBS Radio News, so I can’t link to it. Tonight I heard a quote from, I think Schumer, that Bush should ask O’Conner to stay on the bench. Could be wrong on the speaker, but it sounds like the Dems, at least, say a Justice can hold off an announced retirement indefinately. I can’t think of any reason this wouldn’t be the case. The appointment is for life, so as long as the person is still processing oxygen, they have a seat.
Of course, the new Justice doesn’t have to take an oath of office. He or she can be affirmed by taking an oath or affirmation.
This allowance for an alternative to an oath of office came about due to the Quaker population in the early United States, who objected to swearing oaths on religious grounds. Personally, though, I’ve always believed that it was because “Quaker oaths” would look too much like “Quaker oats.”
Here’s a bizarro hypothetical to add to the fun! O’Connor’s resignation takes effect upon the “nomination and confirmation” of her successor. There’s some talk of delaying Alito’s confirmation hearings (until after the first of the year). So what if Bush tried to make a recess appointment of Alito? Technically he would not have been nominated and confirmed, the requisite to activating O’Connor’s resignation. So does that mean Bush is blocked from making a recess appointment since there is no vacancy on the Court?
In 1789, George Washington was sworn in by Robert Livingstone, chancellor of the State of New York.
In 1901, Theodore Roosevelt wasn’t sworn in by the Chief Justice or by a Federal judge - I forget who swore him in. Anyone know?
In 1923, Calvin Coolidge was sworn in by his father, a Vermont justice of the peace. At the time, it was generally thought that this was a valid swearing-in, as his father was indeed empowered to administer oaths. But Coolidge swore another oath when he got back to Washington, just in case.
In 1963, LBJ was sworn in by U.S. District Court judge Sarah Hughes on Air Force One, as shown in the photo posted above. A very, very sad day. There were rumors that he took a second oath later, back in Washington, but I’ve never seen an authoritative cite for that.
Yes, Otto, I think a recess appointment would be invalid for the reason you suggest. Alito would not have been “confirmed” if the President made a recess appointment. Of course, O’Connor might simply write a second letter saying, “I hereby resign effective immediately,” and Alito could then serve until the beginning of the next session of Congress.
To answer my own question: Theodore Roosevelt was sworn by a Federal judge, John R. Hazel of the Western District of New York, on Sept. 14, 1901.
Tyler, Fillmore and Arthur were all sworn in by lower-court Federal judges, not by the Chief Justice. Not so coincidentally, each became President upon the death of the incumbent.
