Is a New Nomination Necessary? What Happens to Justice O'Connor?

[Marty Lederman]

In response to some confusion, esp. on the web, I've posted this on SCOTUSblog (http://www.scotusblog.com/movabletype/archives/2005/09/is_a_new_nomina.html), addressing why a new nomination to Chief Justice is necessary, why confirmation of Roberts won't trigger O'Connor's retirement as a legal matter, and why I think she will retire before October 3d, anyway.

Is a New Nomination Necessary? What Happens to Justice O'Connor?
10:58 AM | Marty Lederman | Comments (0) | TrackBack (0) 

In his statement this morning, the President announced that "I will nominate [Judge Roberts] to serve as the 17th chief justice of the Supreme Court." 

Various folks in the blogosphere and elsewhere have been wondering whether a new nomination is necessary, and/or whether Justice O'Connor's resignation would become effective if and when Judge Roberts is confirmed to be Chief Justice.

A new nomination is required. The Constitution itself does not specify how many Justices will comprise the Supreme Court -- but it does expressly contemplate that there will be a "Chief Justice" who will preside (as Rehnquist did) over the trial of the impeachment of a President (art. I, sec. 3, cl. 6). Although the question is uncertain, I don't think that that constitutional provision, standing alone, would require that the position of "Chief Justice" be treated as a distinct "Office" for purposes of the Appointments Clause (art. II, sec. 2, cl. 2). Thus, perhaps Congress could have provided, for instance, that the role of Chief Justice would be rotated among the Justices (cf. Weiss v. United States, 510 U.S. 163 (1994)), or be held by the senior-most Justice, or some such thing -- in which case, no separate nomination would be required.

But Congress didn't do so. Instead, it established that "[t]he Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum" (28 U.S.C. 1); and in numerous other statutes, Congress gave particular responsibilities and authorities to the Chief Justice, and a higher salary, to boot (5 U.S.C. 5332 -- $203,000 and $194,300, respectively). These statutory provisions establish a distinct "Office" of Chief Justice for purposes of Article II, and thus the President has the power and obligation to nominate persons to that particular office. That's why, for instance, President Reagan was requierd to nominate Justice Rehnquist to be Chief Justice in 1986, rather than simply "assigning" him to that spot.

Although the President therefore was correct to indicate that a new nomination is required, there is one technical mistake in his announcement this morning: As Chief Justice Rehnquist, a stickler for ceremony, was careful to remind others, the title of the office (per statutory designation) is "Chief Justice of the United States," not "Chief Justice of the Supreme Court."

What does the new nomination mean for the O'Connor retirement? Well, if she takes no further steps, then I think that her office of Associate Justice will not become vacant in the event Roberts is confirmed as Chief Justice, by virtue of her formal letter to the President of July 1st. In that letter, Justice O'Connor wrote: "This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor."

Because a Chief Justice Roberts would fill an office distinct from that of Associate Justice, he would not be a "successor" to Justice O'Connor's office, and thus the condition of her retirement would not be satisfied.

If she takes no further action.

But I strongly expect that Justice O'Connor will retire before October 3d, principally for the reasons that Tom has identified. In particular:

(i) It has been reported that her husband is ill, and that she wishes to devote her time to him.

(ii) There is recent historical precedent -- under similar cirumstances, Justice Marshall rescinded his "conditional" resignation, and made it immediate, when the confirmation of Justice Thomas was delayed (and uncertain).

and

(iii) Most importantly, Justice O'Connor will reasonably assume that her successor will be confirmed before the end of the year, and thus before the Court issues any closely divided decisions. If so, it would mean that her sitting during the October and November arguments would have been fairly meaningless, because her "votes" on those cases will not be counted, and therefore after her replacement is confirmed those cases would either be decided without her vote, or would be reargued (in the event of a 4-4 split vote). That is to say -- there's not a great deal of institutional or practical reason for her to remain on the Court, unless it appears that confirmation of her successor will be extremely protracted.
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