That’s the question I explore in my new Confirmation Tales post.
Justice O’Connor informed President George W. Bush on July 1, 2005 of her “decision to retire…, effective upon the nomination and confirmation of my successor.” She made her decision to retire in deference to Chief Justice William H. Rehnquist’s desire to “stay another year” and to his strong belief that the Court shouldn’t have two vacancies at the same time. Her letter to Bush provides a useful vehicle for exploring some vexing intricacies of judicial retirement and presents some interesting “what ifs?”:
What if Rehnquist had died two hours (or two days or two weeks) after O’Connor’s retirement announcement, rather than two months later? Could O’Connor have revoked her retirement decision? What if O’Connor undertook to revoke her retirement decision after Rehnquist’s death in early September 2005? Or at any time before the nominee to succeed her was confirmed?
Relatedly, I recount some surprising news from Senate Judiciary Committee chairman Arlen Specter’s memoir: Specter tried to persuade Bush to delay his second nomination for O’Connor’s vacancy well into 2006, and he informed Bush that O’Connor was willing to remain on the Court for the full 2005-2006 Term. Had Bush acceded to Specter’s request, who knows who would have ended up filling O’Connor’s vacancy?
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