O'Connor question

[James R Stoner]

Chief Justice Earl Warren retired in this way: announcing in spring 1968
that he would retire once his successor was confirmed, which of course took
a year.  The biography page at the Federal Judicial Center website says
C.J. Burger was confirmed on June 9, 1969, and commissioned on June 23,
1969 -- I presume at the end of the term (it's the same day listed for
Warren's retirement).  Here's the link:

http://air.fjc.gov/history/home.nsf

By the way, Warren, I notice, is said to have been confirmed on March 1,
1954, and commissioned on March 20 -- well after the re-argument of Brown
v. Board on December 8, 1953, a matter I hadn't noticed before.

Jim Stoner
poston at lsu.edu

>>>>>>>>>>>>>>>>>>>>>>>>>>>>
From:owner-lawcourts-l at usc.edu on 10/04/2005 11:12 AM AST

Please respond to mfranck at radford.edu

To:   conlawprof at lists.ucla.edu, lawcourts-l at usc.edu
cc:   (bcc: James R Stoner/poston/LSU)

Subject:    O'Connor question

Forgive the cross-posting if you are on both recipient lists, but I have a
question about Justice O'Connor's current situation that I'm sure someone
on either Conlawprof or Lawcourts can answer.  Here's the set-up:

Yesterday morning on NPR, Nina Totenberg reported that Justice O'Connor
would be showing up later that morning for work in the new October term of
the Court (as I believe she did).  According to Totenberg, O'Connor will
likely work until at least late November and "is likely to hear arguments
in more than 30 cases and to vote in those cases. Once she retires, though,
her previously cast votes don't count in cases not yet announced by the
court."  Apparently if there is a 5-4 case where she is the fifth vote, the
case will be held for re-argument uhen her successor arrives, but if
O'Connor's vote is not decisive, a case will be announced as decided, with
her vote recorded in the report of the case if it is announced while she is
present, and without her vote recorded if it is announced after she leaves.

Totenberg said "this is not a new problem," but the only historical
examples she cited were the 8-member Court that was not filled out for six
months when Kennedy arrived in early 1988, and the 8-member Court that
operated for a full year at that strength, with a number of deadlocked
cases, until Blackmun arrived in 1970.  Clearly these were not exactly the
same situations as the present one with O'Connor.

So here (at last) is my question: Is there any prior occasion in which a
justice announced his retirement, WITH the proviso that he would go when
his successor arrived, AND stayed on participating in cases thereafter,
either in a continuing term of the Court or in a new one, WHILE his
successor was nominated and proceeded through the confirmation process on
the way to appointment and swearing in?  I cannot think of any such
instance.  Can anyone else?

Thanks,

Matt

***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail mfranck at radford.edu
 www.radford.edu/~mfranck
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