Roberts' Nomination Does Not Mean O'Connor Will Stay

From appellate whiz Peter Goldberger (in the TL commments):

Justice O'Connor does not "have to stay for awhile"; she can supersede her conditional resignation letter with an unconditional retirement. I believe this is likely, given the motivation for her leaving the Court, which is to devote her primary attention to her ailing husband. I predict that she will announce her immediate retirement soon after Rehnquist's funeral.

It is important to understand that "Chief Justice of the United States" (not "Chief Justice of the Supreme Court," as Bush mistakenly stated this morning) is a separate office. Roberts is no longer proposed to replace O'Connor; his nomination to that position has effectively been withdrawn....

For the re-opened vacancy for an Associate Justice, I bet Bush picks a highly "conservative" jurist who is Hispanic (if he can find a Protestant -- gotta watch that base; Roberts is, what, a third Catholic on the Court? Further proof that real Christians are being discriminated against, right Pat?) and/or female.

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    Re: Roberts' Nomination Does Not Mean O'Connor Wil (none / 0) (#1)
    by TChris on Sat Dec 17, 2005 at 01:03:16 PM EST
    I agree that Justice O'Connor is likely to tender an unconditional resignation. If she stayed, she'd be hearing arguments and considering cases, knowing that she might be replaced before a written decision is finalized. Why would she want to stay under circumstances that would likely marginalize her participation?

    Re: Roberts' Nomination Does Not Mean O'Connor Wil (none / 0) (#2)
    by squeaky on Sat Dec 17, 2005 at 01:03:16 PM EST
    Good point about too many Catholics and the need for a Protestant (or a Jew), athough I am not totally convinced. BTW-there are already three Catholics on the bench, Scalia, Kennedy and Thomas who is a convert. Gonzales' recent softening appeared to be a feint in order to disarm the blows of critics opposed to his impending nomination for Rehnquist's impending empty seat. Rehnquist's death was no surprise, although many thought he would hold on a bit longer in order to set the record for Chief Justice tenure. Here is a bit from Tom Unswerth of the Catholic Reporter. The article is a bit dated (Jan '03) but is still worth a read.
    President Bush needs Hispanic votes. The nation now has over 35,300,000 Latinos -- most of them with roots in Mexico. His brother, Jeb, governor of Florida, is married to a Latina-American and has converted to Catholicism. Jeb helped to deliver Florida’s electoral votes, the ones that put George in office, even though he lost the general election. Allegedly, Gonzales wants the post. Even now, his staff suggests that he likes to be addressed as “Judge Gonzales.” He is conservative, antiabortion -- and Catholic. Two other possible candidates are Samuel Alito, judge of the appeals court in Newark, N.J. However, Alito is Italian-American as is Justice Antonin Scalia. Alito once clerked for Scalia and earned the nickname “Scalito.” Then, there is Miguel Estrada, perhaps a more reliable conservative than Gonzales. The hard-nosed conservatives don’t amount to that big a political block, however. It’s just that they’re louder and Bush is fearful of them. In any case, all three potential justices are Roman Catholics.
    So Peter, who do you think the Protestant nominee will be?

    Thing is, the Chief's position, as SCOTUS watchers know, is more symbolic than anything (First Amongst Equals, and all that). I write more on this on my blog, but Roberts' youth and inexperience means he'll probably be one of the more ineffective C.J.'s (at least in the next decade or so to come), regardless of whether he stays on the court 30 years or not.

    If the Supreme Court is down to seven members, why not just let it stay that way? Didn't it originally have only seven members? Why not just stall, block, filibuster, and whatever else is needed. The court can still function, and it's balance is now more moderate.

    Re: Roberts' Nomination Does Not Mean O'Connor Wil (none / 0) (#5)
    by Peter G on Sat Dec 17, 2005 at 01:03:17 PM EST
    Squeaky: I hope you realize that I did not say there were too many Catholics -- I speculated that Bush might think so. I did not suggest he would look for (another) Jew, either. There are already two -- that's over "quota." As for the (generally excellent) NCR, I should mention that Judge Sam Alito did *not* clerk for Scalia, and no one who knows him (as I do) calls him or thinks of him as "Scalito"; that's journalistic claptrap. I do think that two Justices from New Jersey is more than the Nation could take, however. But seriously, maybe it's time now for former [Bush II] Assoc. Atty. Gen. Larry Thompson [but he would be another African American from Georgia, so maybe not]. Estrada ran into too much trouble with the Senate when he was nominated to the DC Circuit, so that would be like a slap in the face to the Senate -- too controversial. I'm willing to wait and listen before I go any further.

    Re: Roberts' Nomination Does Not Mean O'Connor Wil (none / 0) (#6)
    by squeaky on Sat Dec 17, 2005 at 01:03:17 PM EST
    Peter-No, I is clear that your speculation about too many Catholics is not your position. And I think it is a good point. Thanks for correcting the journalistic claptrap about Alito. Other than that I found the NCR piece quite informative. I am embarrassed to say that I agree with you about NJ, I guess I am a bigot even though my experience of NJians is limited; limited experience is often the cause of bigotry. I live near the Holland tunnel and regularly have to run for my life as NJ hurls itself into that hole franticly trying to escape NYC. Must be some kind of pheromone coming out of that Jersey duct that brings out the frenzied killer instinct in them. It only affects the drivers and seems more powerful the closer thet get to the mouth of the tunnel. They probably don't act as badly once they are in or near their NJ homes.