Friday, July 01, 2005

O'Connor retires


Well, the expected announcement of a retirement from the Supreme Court is here ... but it's not Rehnquist.

William Kristol of The Weekly Standard got it right when he predicted that Sandra Day O'Connor would be leaving.

Of course, this doesn't meant that Rehnquist isn't leaving. He might go, too. So might Stevens. I suspect that a lot of it has to do with the respective justices' confidence that President Bush would a) appoint successors they approve of and b) be able to force his nominees through the confirmation process so that the court doesn't go into its next term short-handed.

And what about my prediction of a recess appointment? Interestingly, O'Connor seems to have structured her announcement in a way that precludes a recess appointment at this time:

O'Connor, 75, said she will leave before the start of the court's next term in October, or when the Senate confirms her successor.

If she'd just said "I'm outta here, right now," Bush could have appointed a successor while the Senate was in recess for the 4th of July, and that successor would have served through 2006 with no need for Senate confirmation. As it is, if he tries a recess appointment, O'Connor can just wag her finger at him and say "look, Buster, I said I'm leaving either in October or when the Senate confirms my replacement. That clearly meant that my retirement was predicated on a regular, not recess, appointment, which means that my retirement announcement is now withdrawn." Of course, if Bush submits a nominee to the Senate, O'Connor leaves, and the Senate stalls, then he could do a recess appointment over the Christmas holiday.

Intentional or coincidental? I suspect the former. O'Connor has been a swing vote on abortion and probably wants the Senate to safeguard the seat she's leaving against someone who's "unacceptable" with respect to overturning Roe v. Wade. Personally, I don't think that Bush can get any nominee through the Senate, at least without "the nuclear option" to end filibuster ... but apparently O'Connor is less worried about potential Senate obstructionism than about potential White House opportunism.

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