July 23, 2005
July 23, 2005 08:13 PM
Prof. Lindgren over at the VC offers a discussion of the Catch-22 created by Justice O'Connor's letter to the President that I first noted here.
Punchline...the resignation is probably unconstitional.
Don't believe the hype, read the comments, and stop being so darn' sarcastic.
Upshot: go with prior precedent (Fortas, etc.), check what other Presidential appointments have looked like (including to positions other than the SCOTUS), and assume that so long as O'Connor is stepping down at the moment (day of) the Senate approves Roberts (assuming...) then there'll be no collision, no unwanted 10th Justice, no difficulty Constitutionally speaking, etc.
By the way, who precisely would have standing to sue if the President attempted to appoint a Justice to one of the 9 available seats and none were open? One of those 9?
Also, Senior Associate Justices (or whatever they call them) don't count against the 1+8 slots, so couldn't a President in theory make up a new slot, Senior Associate Justice #2, and appoint an elder Judge (Posner? Someone like 3rd Circuit former Chief Judge Ed Becker?) to that position? Oh, it would take an act of Congress? Ah well.
The problem I see is not with the confirmation but that the letter CALLS FOR CONFIRMATION. It is perfectly within the purview of the President to make a recess appointment to the Court...unless it is Justice O'Connor he is replacing. Bit odd no?