Effective date of a Justice's retirement or resignation

[JFN]

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 
confirmed.

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."

John Noble
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20050702/4fd190d2/attachment.html