SOC’s Tenure
on Sep 5, 2005 at 2:44 pm
I see Marty’s point, and understand that he’s agreeing with my assessment of the reasons that Justice O’Connor might submit a revised letter of resignation effective immediately rather than returning to bench in October, but I ultimately disagree with his view that she is likely to do so.
I think that Justice O’Connor will view herself as having made a promise to the President and to the nation to continue to serve until a successor is confirmed. She could have resigned effective immediately or effective upon the start of the new term, but she didn’t do either of those.
Justice Marshall did send a revised letter, but I think that reflected the state of his personal health at the time. We have no reason to believe that Justice O’Connor is unable to serve. No doubt, it will be a hardship to her and to her family, and it will be a largely empty exercise (other than her ability to vote on cert. petitions and summary reversals) given the likelihood that a new nominee will be in place before any of the decisions of the Term are issued. But as they say, “it comes with the job.”
So, my bet is that Justice O’Connor will take her seat for the eight arguments of the October sitting, then (assuming the confirmation of her successor goes smoothly) will be gone by the November sitting.
Although Justice O’Connor’s return wouldn’t affect the Court’s decisions substantially, it would affect the confirmation dynamic. When her resignation was originally announced, Democrats argued that there was no rush to name a successor because she could continue to serve. That is, ironically, the point Republicans will likely use to argue that the Roberts confirmation should be completed before the Senate turns to O’Connor’s replacement. Democrats, in turn, will likely use the same point to slow-play the process for confirming a second nominee and to allow any opposition to build.
