Effective date of a Justice's retirement or resignation
jfnbl at earthlink.com
Sat Jul 2 13:27:45 PDT 2005
At 11:20 AM -0700 7/1/05, 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.
So she still has life tenure, and the prerogative to change her mind.
If the resignation is not effective until confirmation of her
successor, then she can withdraw the resignation if she doesn't like
the nominee, or even if she doesn't want to see Senate Republicans
change the filibuster rule to force confirmation, right?
What if Earl Warren had resigned "effective upon the nomination and
confirmation of Abe Fortas as my successor." Okay, that's a little
bald. It might have gotten Warren impeached before it got Fortas
But what if O'Connor is reading the conlawprof thread "What
precedents are in jeopardy?" and thinking about her legacy. What if
the Washington Post reported that "unidentified former law clerk, who
remains close to Justice O'Connor, says that O'Connor has privately
made it clear that she will not be replaced by a nominee whose
commitment to preserving the right to an abortion secured by Roe v.
Wade is not unambiguous."
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