Blog Round-Up – Monday, July 25th
Here Volokh Conspiracy comments on this post by Bench Memos on whether or not the Senate can confirm Justice O’Connor’s replacement before her resignation is effective.
The Volokh Conspiracy also has this entry on David Bernstein’s forthcoming article on Bolling v. Sharpe, titled “Bolling, Equal Protection, Due Process, and Lochnerphobia.”
Altercation has a new feature titled “Scoring SCOTUS” a largely informational but occasionally political column written by criminal defense attorney Jeralyn Merritt of TalkLeft.
Supreme Court Extra has this post on the conservative nature of the Rehnquist Court.
The American Prospect has this article on Kelo and what community groups’ responses to the decision should have been.
Here is PrawfsBlawg on the changing religious face of the Court.
Finally, here is Balkinization on Roberts and Roe.
It is not unusual for Presidents to nominate, and the Senate to confirm, individuals to offices in anticipation of a vacancy. The practice dates back to at least President Adams in 1801. See Edward Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 391 (2005).
For a recent prominent example, consider the nomination and confirmation of Condolezza Rice while Colin Powell continued to serve as Secretary of State. See FDCH E-Media, Transcript: Powell Says Farewell to State Dept. Employees, Wash. Post., Jan. 19, 2005, at http://www.washingtonpost.com/wp-dyn/articles/A20895-2005Jan19.html (reporting Secretary of State Powell’s address to State Department Employees on Jan. 19, 2005, the same day that the Senate Foreign Relations Committee voted to approve the nomination of Condolezza Rice as his successor); John King et al., Powell Resigns with Three Other Cabinet Secretaries, (Nov. 15, 2004), at http:// http://www.cnn.com/2004/ALLPOLITICS/11/15/powell/ (reporting that Powell announced his resignation on Nov. 15, 2004, and that he expected to continue to serve as Secretary of State for the “weeks or a month or two as my replacement goes through the confirmation process”); 151 Cong. Rec. S-34 (Jan. 4, 2005) (nomination of Condolezza Rice as Secretary of State); 151 Cong. Rec. S-529 (Jan. 26, 2005) (confirmation of Rice as Secretary of State).
Comment by Edward Hartnett — July 25, 2005 @ 11:06 am
Mr. Hartnett hit it on the head. Resignations often happen like this; the linked article seems like just an opportunity for axe-grinding.
Comment by Alex Turner — July 25, 2005 @ 2:11 pm
In regards to the Appointment proccess, It should be noted that there are three distinct actions in the proccess, which are the nomination, confirmation, and appointment. Only confirmation (advise and consent) and appointment are defined in the constitution. Nomination has arisen from practice. I think many people confuse appointment and nomination. Nomination occurs prior to senate confirmation, while the actual appointment occur afterwards. People don’t ussually see the actually appointment because at that point everything has been decided. Since someone does not take office until the actual appointment, which must occur after confirmation, it is entirly legal for O’Conner to resign dependant on the confirmation of her successor. Theoretically, the President can nominate and the senate can confirm anyone for any post in the government even if a position is not vacant, although that person may not actually be appointed and take office until there is a vaccancy.
Comment by Joshua Teasdale — July 26, 2005 @ 9:18 pm