Effective date of a Justice's retirement or resignation

Fri Jul 1 12:00:11 PDT 2005

It is not unusual for Presidents to nominate, and the Senate to confirm, 
individuals to offices in anticipation of a vacancy.   The practice dates 
back to at least President Adams in 1801.  See my Recess Appointments of 
Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 
377, 391 (2005).

For a recent prominent example, consider the nomination and confirmation 
of Condolezza Rice while Colin Powell continued to serve as Secretary of 
State. See FDCH E-Media, Transcript: Powell Says Farewell to State Dept. 
Employees, Wash. Post., Jan. 19, 2005, at 
http://www.washingtonpost.com/wp-dyn/articles/A20895-2005Jan19.html 
(reporting Secretary of State Powell's address to State Department 
Employees on Jan. 19, 2005, the same day that the Senate Foreign Relations 
Committee voted to approve the nomination of Condolezza Rice as his 
successor); John King et al., Powell Resigns with Three Other Cabinet 
Secretaries, (Nov. 15, 2004), at http:// 
www.cnn.com/2004/ALLPOLITICS/11/15/powell/ (reporting that Powell 
announced his resignation on Nov. 15, 2004, and that he expected to 
continue to serve as Secretary of State for the "weeks or a month or two 
as my replacement goes through the confirmation process"); 151 Cong. Rec. 
S-34 (Jan. 4, 2005) (nomination of Condolezza Rice as Secretary of State); 
151 Cong. Rec. S-529 (Jan. 26, 2005) (confirmation of Rice as Secretary of 
State).

Ed Hartnett
Seton Hall 

Evan Caminker <caminker at umich.edu> 
Sent by: conlawprof-bounces at lists.ucla.edu
07/01/2005 02:05 PM

To
<conlawprof at lists.ucla.edu>
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Subject
Re: Effective date of a Justice's retirement or resignation

Perhaps a naive question, but doesn't this put the cart before the horse?  
There is no "vacancy" into which a successor can be "qualified" or "sworn" 
or "confirmed" until the predecessor has resigned.  Perhaps one can say 
there is an instantaneous moment when the successor "takes office" and the 
predecessor simultaneously "resigns" -- but if so, there can be only one 
such moment.  If the predecessor takes office upon Senate confirmation, 
then the TM/HAB/WEB resignations were problematic because the resignation 
and hence vacancy did not occur until the oath, which takes place some 
time after confirmation.  So is the moment of office assumption the taking 
of the oath, in which case all of the resignations would have taken place 
either at that precise moment or previously?  And even if so, I am 
skeptical of the coherence of saying that a vacancy can be created at the 
exact moment in time that -- and precisely because -- it is being 
filled....

Evan

At 12:48 PM 7/1/2005, Marty Lederman wrote:
I think, but am not certain, that it is the exception rather than the 
rule.  TM's resignation was effective upon Thomas being "qualified"; 
Blackmun's upon Breyer's oath of office; and Burger's upon the 
Rehnquist/Scalia oaths; but other than those, I believe that in "recent" 
years there have been vacancies between resignation and replacement, most 
notably during the Bork/Ginsburg/Kennedy nominations.  
 ----- Original Message ----- 
From: Pam Karlan 
To: conlawprof at lists.ucla.edu 
Cc: DLaycock at law.utexas.edu ; marty.lederman at comcast.net 
Sent: Friday, July 01, 2005 12:44 PM
Subject: Effective date of a Justice's retirement or resignation

At 11:15 AM 7/1/2005 -0500, Douglas Laycock wrote:
My dim recollection is that Earl Warren tried it and it backfired
politically. 
Resigning (or retiring) with the effective date being the qualification of 
one's successor is not as rare, I think, as people have surmised.  
Consider, e.g., Thurgood Marshall's letter to the president:

   My dear Mr. President:

   The  strenuous demands of court work  and its related duties required 
or
expected of a Justice appear at this time to be incompatible with my 
advancing
age and medical condition.

   I, therefore, retire as an Associate Justice of the Supreme Court of 
the
United States when my successor is qualified. Respectfully,

   Thurgood Marshall

Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
karlan at stanford.edu
650.725.4851 

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Evan Caminker
Dean and Professor of Law
University of Michigan Law School
625 South State Street, Ann Arbor, MI  48109-1215
ph:  734-764-0514;  fax: 734-763-1055
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