Effective date of a Justice's retirement or resignation

Fri Jul 1 21:03:23 PDT 2005

The big difference is that an Article III judge serves for life; a President
is constitutionally term-limited. Successor or no successor, the President's
term in office (and all powers and responsibilities) terminate at a date and
time certain -- 20th Amendment -- "The terms of the PResident and Vice
President SHALL END at noon on the 20th day of January ...." No resignation
letter is needed .... But in the case of Article III judge, they hold that
job till impeached or till they officially resign, no? So, till then,
formally, there is no office open or available for anyone else to be
confirmed to fill, or at least, so would go the argument, though at the end
of the day, it's probably not an argument that will go very far ....

- Gordon Silverstein

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Janet Alexander
Sent: Friday, July 01, 2005 8:53 PM
To: Scarberry, Mark; conlawprof at lists.ucla.edu
Subject: RE: Effective date of a Justice's retirement or resignation

Justice O'Connor's retirement is to be effective "upon the nomination and
confirmation of her successor," according to the USSC announcement of her
retirement today.  I'm not sure why so much concern about when a vacancy
occurs.  We conduct an election for President and certify the electoral
college vote while the incumbent is still in office, and the incumbent
remains in office after the results are certified (analogous to
confirmation).   

In Justice O'Connor's case, there will be a gap as Mark points out between
the confirmation of the successor (when SOC's retirement will be effective)
and when the successor takes the oath of office.  But following the analogy
of the Presidential election there doesn't seem to be any reason why a
successor couldn't be nominated and confirmed before the retirement becomes
effective.  For example, a Justice could announce in November that she would
retire effective at the end of the Term; a successor could be nominated and
confirmed by January and take the oath of office after the end of the Term.

        Janet Alexander

At 11:20 AM 7/1/2005 -0700, Scarberry, Mark wrote:

Article VI requires that "all ... judicial Officers, both of the United
States and of the several States, shall be bound by Oath or Affirmation to
support this Constitution; ...." It follows, I think, that no person may act
as a Supreme Court Justice prior to taking the oath of office, and thus it
is reasonable to conclude that a person does not take office until he or she
takes the oath. The result is that Justice O'Connor's seat would become
vacant on Senate confirmation of the nominee, and the nominee would then
become a Justice on taking the oath of office. 

It is reasonable to interpret "qualified" in Justice Marshall's retirement
letter as a reference to the successor becoming qualified to take the oath
of office; i.e., on confirmation by the Senate.

Mark S. Scarberry

Pepperdine University School of Law

-----Original Message-----
From: Evan Caminker [mailto:caminker at umich.edu] 
Sent: Friday, July 01, 2005 11:05 AM
To: conlawprof at lists.ucla.edu
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 <mailto:karlan at stanford.edu>  

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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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892

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