Bench Memos

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Delay Is Still Futile


Now seems a useful time to remind Senate Democrats that delaying the confirmation of Justice O’Connor’s successor cannot be expected to yield the Left any advantages, notwithstanding the fact that O’Connor’s resignation is effective only upon her successor’s confirmation and notwithstanding the likelihood that the Left will dislike her successor more intensely than it disliked her.

As I explained more fully here, even if O’Connor were to take part in oral arguments in controversial cases, she would not be able to participate in the final decision in any case rendered after her successor’s confirmation. Because controversial cases will take many months after argument, it is a virtual certainty that in any case in which O’Connor’s vote were decisive, delaying her successor’s confirmation would serve merely to disrupt the Court by requiring that the case be re-argued.

For this reason and for the reasons that led her to conclude that she should resign, it is far from clear that O’Connor would have any interest in taking part in any oral arguments. As my former OLC colleague Marty Lederman reminds us, Justice Thurgood Marshall initially submitted a resignation, like O’Connor’s, contingent on his successor’s confirmation, but removed the contingency when the nomination of Clarence Thomas encountered delay. O’Connor might see fit to take a similar action, especially if she were to discern that Senate Democrats were using the contingency in her resignation as a reason to delay her successor’s confirmation.


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