Total Control

Russell Shaw: Law Profs. Debate: What Would Happen if O'Connor Takes Back her Resignation? | The Huffington Post

The post above reflects a question I've been asking myself lately: Couldn't Sandra Day O'Connor just stop this whole Miers charade by taking back her resignation?

Leaving aside the fact that O'Connor wants to retire and has valid (family) reasons for doing so, this raises a constitutional question, and in these contentious times, we're going to need an answer eventually: Is it possible for a justice to make his or her retirement conditional not just on the selection of a successor, but an appropriate successor?

Think of it: Poor John Stevens, rather than trying to hold out for a possible Democrat in 2009, could rest his 85-year-old bones AND effectively decide who would replace him. If Bush nominated Michael Luttig, Stevens could withdraw his resignation. Hell, he could send the President a letter that reads, "I hereby submit my resignation, effective upon the confirmation of [insert name of liberal judge or lawyer here] as my successor." Why not? Who can stop him--the Supreme Court? He's on it!

You can see why this could be problematic. Yet most of the experts Russell Shaw polled seem to think O'Connor could pull back her resignation, and that if Bush tried to nominate someone new anyhow, his approval rating would take a dive. Now, I know I wouldn't approve of most of Bush's potential nominees--especially those chosen out of anger that his best gal pal was rejected by the Senate--but still, I can't follow down the dangerous road that allowing a justice to rescind a retirement would represent. Because let's face it, there are worse things than letting Bush pick O'Connor's replacement. Like letting Scalia and Thomas choose theirs.