last night i received a call from my mother.

“i have a question for you. how can the president appoint a new justice to replace o’connor if there isn’t really a vacancy?”
“hunh?”
“did you read her letter of resignation? it’s contingent upon the nomination and confirmation of a successor. so she’s still on the bench, technically, right?”
“um. hmmm. well, i think…”
“and even if bush does nominate someone, if the senate doesn’t confirm them by the start of the new term, she’d still be a justice?”
“that sounds right.”
“but how can bush nominate someone if there isn’t a vacancy?”

sheesh. are children going to be this bad?

anyway, let’s take a look at the text of o’connor’s letter from yesterday (transcribed from the pdf on the wp website):

Dear President Bush:

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. It has been a great privilege, indeed, to have served as a member of the Court for 24 Terms. I will leave it with enormous respect for the integrity of the Court and its role under our Constitutional structure.

Sincerely,

Sandra Day O’Connor

i was curious to know if this language was standard for justice resignations, so i googled thurgood marshall’s letter of resignation. according to resignation.com, it read as follows:

June 27, 1991.

My Dear Mr. President:

The strenuous demands of court work and its related duties required or expected of a Justice appear at this time to be incompatible with my advancing age and medical condition.

I, therefore, retire as an Associate Justice of the Supreme Court of the United States when my successor is qualified.

Respectfully,

Thurgood Marshall

first thing to note: neither marshall nor o’connor resigned from their positions — they both retired. it’s a benefits-based distinction set out in title 28 of the us code, contingent (on my read) upon age and time in service (and may be value-weighted: is it less honorable to resign than retire?). second thing: based on this n of 2, it seems retirement contingent upon the existence of a confirmed successor is standard.

in my perusing of the us code, i’ve come across nothing to indicate when a president may nominate a person to the supreme court. does s/he have to wait until a sitting justice has announced his/her retirement or resignation? from a practical standpoint there seems to be no reason why a president would go through the expense and hassle of a nomination/confirmation process without a guarantee of an empty seat; add to that the politics of replacing any given justice, a president probably wouldn’t want a confirmed replacement waiting in the wings.

inneresting.