Could Justice O'Connor Have Revoked Her Retirement Decision?
Exploring some "what ifs?" and Arlen Specter’s gambit
On July 1, 2005, Justice Sandra Day O’Connor informed President George W. Bush by letter that she had decided to retire from the Court:
This is to inform you of my decision to retire from my position as Associate Justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor.
O’Connor’s letter to Bush provides a useful vehicle for exploring some vexing intricacies of judicial retirement. It also presents some interesting “what ifs?”—including a momentous “what if?” that came very close to happening.
As we have seen, Justice O’Connor 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.
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?
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The Constitution sets forth in the Appointments Clause (Article II, section 2, clause 2) the formalities of becoming a federal judge: The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” Lower-court judges fall in the category of “all other Officers …,” so the Appointments Clause treats Supreme Court justices and lower-court judges the same.
In brief, the Appointments Clause provides three steps: First, the president nominates an individual to a federal judgeship. Second, the Senate decides whether or not to confirm (or give its “Consent” to) that nomination. Third, upon confirmation, the president exercises the authority to appoint that individual.
By contrast, the Constitution says nothing about how an individual shall voluntarily leave judicial office. So how should a justice or judge who decides to resign implement that decision?
There is no settled answer to this question. I present my own views and intuitions on the matter here. While I regard some of them as uncontroversial, others might well be contested (and perhaps I could be persuaded that I am mistaken).
One essential component of a judicial resignation is a judge’s expression of a firm decision to resign. Wording matters. “I hereby resign (or retire from) my judicial position effective on my 65th birthday” qualifies. So does “I am writing to inform you that I have decided to resign my judicial position effective immediately.” By contrast, “I intend to resign my judicial position at the end of November” is a mere statement of intent to take a future action that effectuates the resignation.
A second essential component of a judicial resignation is communication of that decision to a proper recipient of the communication. A judge does not resign simply by saying out loud to himself, “I hereby resign ….” Nor is it evident that he does so by saying those words to a law clerk or by writing them to a friend.
Who are the proper recipients of such a communication? One usual way to leave a job is to inform your boss that you’re departing. But a wrinkle here is that a federal judge doesn’t really have a boss.
It’s long been accepted—indeed, I understand it to be standard practice—that a judge inform the president of his resignation decision. Why that practice has developed is less than obvious. Federal judges, unlike executive-branch officials, of course do not answer to the president. Nor, unlike most executive-branch officials, do they typically owe their appointment to the sitting president. So why send the president a letter?
One “good government” answer is that it’s a sensible practice to apprise the president of a newly or imminently arising vacancy so that the president can fill it as soon as possible. I suspect, though, that early American judges simply adopted the practice from England, where judges were servants of the Crown. In any event, I think that the better answer is simply that the president obviously qualifies as someone whose dignity of office makes him fit to receive formal notice of a judicial resignation.
Must a resigning judge inform the president of his resignation? I see no reason why. I would think it sufficient for a judge to inform the chief judge of his court or even his payroll official that he is resigning. Indeed, in cases in which a judge informs the president of his mere intent to resign in the future, the judge’s actual decision is presumably effectuated by such lesser communications later on.
Must a judge’s resignation be in writing? Surely not. But a letter is a prudent vehicle, as it eliminates (or at least narrows) evidentiary disputes over whether the judge has in fact resigned and on what terms.
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When President Bush received Justice O’Connor’s letter informing him of her retirement “effective upon the nomination and confirmation of my successor,” had O’Connor made a binding decision to retire? Or could she revoke her decision—and, if so, up until when?
As I read it, the text of O’Connor’s letter supports the conclusion that her decision to retire was final, irrespective of the fact that it would take effect (become “effective”) only upon a later event. To read it instead as revocable would be to collapse it into a mere statement of O’Connor’s intent to retire upon that later event. But there is a huge textual difference—so it seems to me—between “This is to inform you of my decision to retire from my position as Associate Justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor” and “This is to inform you of my intent to retire from my position as Associate Justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor.”
I pass over the distinct question whether O’Connor could have repudiated her letter while it was en route to the White House (e.g., by calling Bush and telling him to disregard it)—I’m inclined to think that she could have—as well as the question when precisely Bush should be deemed to have received her letter (when it reached the White House? when it reached his desk? when he read it?).
In order for the president to nominate a successor to a judge, it is not necessary that a vacancy either exist already or be certain to arise (on a set date or on the occurrence of a condition such as the successor’s confirmation). The Constitution requires only that the vacancy exist when the president undertakes to appoint someone to it, not that it exist (or be certain to arise) when he makes a nomination. So the fact that Bush, after receiving O’Connor’s retirement letter, proceeded to nominate her successor does not shed light on the question whether she had made an irrevocable decision to retire.
In sum, to offer my own answers to my opening hypotheticals: If Chief Justice Rehnquist had died two hours (or two days or two weeks) after Justice O’Connor’s retirement letter reached President Bush, O’Connor would not have been able to revoke her retirement decision. Nor could she have done so at any later time. That she evidently based her decision to retire on a mistakenly hopeful premise—Rehnquist’s survival for an additional year—does not alter the fact that she made that decision to retire. Nor, of course, did O’Connor ever suggest otherwise.
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At the risk of going too deep into the legal weeds, I will acknowledge that there is some authority that cuts the other way. Specifically, back in 1974, the Department of Justice’s Office of Legal Counsel had occasion to opine whether a federal judge could withdraw his decision to retire. (OLC provided me a redacted copy of its opinion years ago.) In that instance, the judge sent President Nixon a letter dated February 12, 1974, setting forth his decision to retire from regular active service, effective April 1, 1974, pursuant to a provision that gave special benefits to those suffering from permanent disability. But eight days later, he sent Nixon a second letter stating that (in OLC’s summary) “he had received further medical advice which has led him to believe that he is not permanently disabled” and therefore wished to withdraw his election to retire.
OLC’s opinion cited with approval “a number of recent court rulings” that it said had “established” that “a resignation to take effect in the future may be withdrawn prior to its effective date, especially where, as here, it had not been accepted prior to that time.” But those rulings all involved resignations by “federal officers or employees,” not by federal judges, and OLC made no effort to examine whether they established relevant principles. (The first case OLC cited, for example, concerned a military veteran who worked as an electrician and who resigned in order to avoid formal charges against him. The court relied on the Veterans Preference Act in ruling for him.)
Further, the president has no role in “accept[ing]” a judicial resignation. Insofar as that concept is coherent at all, it would appear that President Bush “accepted” Justice O’Connor’s retirement on the same morning he received her letter. So OLC’s opinion strikes me as very weak.
But, I emphasize, there is no clear law on this matter, and there is plenty of room to contend that, no matter how definite a judge’s announced decision to retire in the future is, the judge is free to retract that decision before it becomes effective.
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Although in my judgment O’Connor could not have revoked her retirement decision upon Rehnquist’s death in early September 2005, the terms of her resignation letter provided her an alternative means of serving a full additional term on the Court. Recall that President Bush promptly withdrew his nomination of John Roberts for O’Connor’s seat and nominated Roberts to be Chief Justice instead. O’Connor might well have decided that the best way to honor Rehnquist’s strong desire that there not be two vacancies at the same time would be to request that Bush and the Senate defer the “confirmation of [her] successor”—the event that would trigger her retirement—until mid-2006.
Farfetched, you think? Not at all. It turns out that Senate Judiciary Committee chairman Arlen Specter was pushing for that very delay and, by his account, had enlisted O’Connor’s support and even shared the news with leading Senate Democrats.
In mid-September 2005, Specter was concerned that “[e]ven before the Roberts nomination was a closed deal [i.e., had been confirmed by the Senate], President Bush was eager to move ahead with someone to replace Justice O’Connor.” Here’s how Specter tells the rest of the story (in his memoir Never Give In):
Anticipating the president’s insistence on proceeding immediately, I called [White House chief of staff] Andy Card shortly before noon on Monday the nineteenth [of September] to tell him that I thought the next hearing, if it came immediately, would be a bloodbath, and it would make a lot more sense to have Justice O’Connor stay on until June. I had drafted a letter to the justice setting forth my reasons for requesting her to stay on.
Card was immediately negative on the idea…. To keep the pressure on, President Bush called me shortly after I hung up with Card and expressed his appreciation for doing a good job on the hearings. I then told him my thoughts about O’Connor, though I am sure he already was informed, and he said that he would relish a good fight. I reminded him that I never ran from a fight, but I was concerned about getting his nominee confirmed. He suggested that O’Connor might not be anxious to continue to serve, and I replied that it was worth a try….
I then called Justice O’Connor the following day, September 20. The justice told me she would be willing to serve until June if she were asked to do so, presumably by the president, and that she entirely agreed with me that the next confirmation hearing would be difficult. I used the term “bloodbath,” and she agreed….
When President Bush, Vice President Cheney, Andy Card, and Senators Frist, Reid, and Leahy and I had our September 21 meeting, I stated my case for deferring the nomination to the following year and noted that Justice O’Connor was amenable to staying on. The only response to my comments came from Senator Frist, who said he thought we ought to go ahead on schedule with the next nomination.
It’s impossible to know what would have happened if President Bush had acceded to Senator Specter’s request to delay his nomination in order to allow Justice O’Connor to serve the Court’s entire 2005-2006 term. But the White House would have had many more months to develop a list of candidates who would satisfy Bush’s strong preference to name a woman to succeed O’Connor, and the Left would have had those same months to attack the candidates they most opposed. It seems very unlikely that Justice Samuel Alito would have ended up filling O’Connor’s seat.
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