The Stevens Resignation Is Not Contingent Upon the Confirmation of a Successor

The Above the Law blog has posted what purports to be a letter from Associate Justice John Paul Stevens to President Obama announcing the Justice’s resignation.

Interestingly, the resignation is not contingent upon the successor’s confirmation and appointment. “I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. 371(b), effective the next day after the Court rises for the summer recess this year.” (emphasis added).

That means the Court will operate at eight justices if no successor is confirmed and appointed in time for October with the “liberal” bloc of the Court down a vote.

Update: Over at the New Yorker news desk, Jeffrey Toobin thinks this non-contingent method of resignation was intended to aid President Obama in timely securing a replacement. In 1968, Chief Justice Earl Warren resigned contingent upon his successor’s confirmation (the same technique used by O’Connor, among others). I assume that Chief Justice Warren also  intended to benefit President LBJ by providing a parachute should the Fortas confirmation fail (as it did). Who is right, Stevens or Warren? I’d be interested in hearing your thoughts. Which helps a President more, contingent resignation or an unconditional resignation?

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4 Responses

  1. Lawrence says:

    Of course. Justice Stevent wants to relax a bit. He’s earned it. He has money, he can just sit at home all day and play on http://www.dirtyphonebook.com and tend to his garden, eat hearty, and have a fine old bunch of golden years.

  2. Logan says:

    It all depends on the age of the Justice. In this scenario, he probably couldn’t last on the Court much longer given his age (probabilities say he’s got to die sooner than later). Combine that with the current political climate (Democrats are sure to lose seats in the Senate with a somewhat decent chance of losing the majority (say 10%-20%)) and it makes complete sense to make it an unconditional resignation. This way Obama and Senate Democrats get their a$$ in gear and confirm someone before it’s too late.

    Now if Stevens was in his 60s and in good health, he could conceivably live long enough to wait for another Democratic President, with a Democratic majority in the Senate, before he would need to retire to ensure someone with similar views would replace him. Thus, in this scenario a conditional resignation might make more sense.

    In another scenario, (he’s the same age but a pro-Democratic political climate) he could offer either because it wouldn’t really matter as long as he retired before Obama left office (by vote or term limits).