In a short series of posts, I’m going to explain how and why information that I’ve obtained from the Supreme Court’s public information office reinforces my previously expressed tentative view that Justice O’Connor fully retired from the bench upon Justice Alito’s confirmation in January 2006 and that her participation in decisions of various federal courts of appeals since that time has been unlawful.
Below the fold (click “Full Story” or the title of this post), I include the full substance of my e-mail exchange with the Court’s public information office. I’m setting forth this full exchange only as foundation for my later posts, and few readers will likely find it interesting to wade through now. Here I’d like to offer a few general comments about my understanding of the role of that office that bear on how I will construe its responses to my inquiries.
As I understand it, the role of the public information office is to serve as a spokesman for the Court institutionally and for each of the individual justices in their official capacities. When an inquiry relates to a particular justice and calls for anything other than routine information, the practice of the office (so I’m told and so good sense would command) is to coordinate a response with that justice. The public information office is not going to provide any non-routine information about a particular justice without first obtaining that justice’s approval.
In other words, the top priority of the public information office is not to provide information to the public. Rather, it’s to serve its clients, the justices, by providing whatever information they wish to provide in whatever form they want to provide it. I don’t say this as a general complaint. On the contrary, it makes good sense to have the office play that role. But what this means, as my exchange with the office will illustrate, is that the office will not always provide clear and direct and complete responses to questions. Further, when the office, presumably acting at the direction of a justice, provides selective or evasive responses, it may well be eminently reasonable to draw adverse inferences about non-responses. (I will try to make clear when I am drawing such inferences.)
Again, I emphasize that nothing in what I’ve written here should be misconstrued as a complaint about the public information office. I’m grateful for its assistance and simply recognize that it’s constrained in how it operates.
Here’s my exchange with the Court’s public information office:
1. On October 8, I sent this e-mail to Kathy Arberg, head of the office:
Dear Ms. Arberg:
At [your deputy's] suggestion, I’m writing to request information relating to the retirement decisions of Supreme Court justices. The specific context for my inquiry is the different wording in the recent letters to the president that retiring justices O’Connor, Souter, and Stevens each sent — a matter that I tentatively explored in this blog post of mine: http://www.nationalreview.com/bench-memos/248543/justice-o’connor-really-still-judge-ed-whelan. More broadly, I’m interested in understanding the precise steps and processes by which Supreme Court justices put into effect their decision to retire.
I’d be very grateful if you could provide the information responsive to these questions:
1. I have copies of Justice O’Connor’s July 1, 2005, letter to President Bush, Justice Souter’s May 1, 2009, letter to President Obama, and Justice Stevens’s April 9, 2010, letter to President Obama. For each of these three justices, is the letter to the president the instrument by which they effected their retirement? Or are there additional documents that they or others executed that are (or may be) part of their act of retirement or that might bear on the meaning of the letter to the president? (Some possibilities might be correspondence between the retiring justice and the Chief Justice as well as the materials referred to in questions 2 and 3, but I don’t mean this listing to be exhaustive.) If there are any such documents, would you please identify them and provide them to me?
2. Does the Court’s personnel office (or any other office or official at the Court) play any role in putting into effect a justice’s retirement decision? If that office provides any written materials to the justice (including on the choice between retiring from the office under 28 USC 371(a) and taking senior status under 28 USC 371(b)), would you please provide a copy of the materials to me? If a justice in connection with his or her retirement decision submits any forms to the Court’s personnel office (or any other office or official), I respectfully request a copy of the forms completed by Justices O’Connor, Souter, and Stevens (redacted, of course, to exclude any personal information such as address or SSN).
3. Does the Administrative Office of the United States Courts play any role in putting into effect a justice’s retirement decision? If a justice in connection with his or her retirement decision submits any forms to the Administrative Office, I respectfully request a (redacted) copy of the forms completed by Justices O’Connor, Souter, and Stevens.
4. Do you have copies of the letters to the president that other retiring justices (Justice Blackmun, Justice White, and earlier retiring justices) have sent? I’d be grateful for any others that you have.
I hope very much that these requests aren’t burdensome. If there’s anything about them that is unclear, please e-mail or call me (direct line: 202-[redacted]).
I don’t face a hard publication deadline, but would be very grateful if you could provide this information by the close of business next Wednesday. (If that timeline isn’t feasible, please let me know what is.) If it’s easy to provide some information right away and other information later, I’m happy to receive the information in phases. And, of course, if there is information that you are unable to provide, I’d appreciate your telling me so.
2. On October 19, I received this response from Ms. Arberg:
Dear Mr. Whelan,
Thank you for your note regarding the steps a Justice follows when he or she retires. In addition to the personal letters Justices traditionally send to the president announcing their plans to retire, a standard personnel action form is completed. This form (SF-50) serves as the official notification of personnel action for any federal government employee and is part of an individual’s personnel record. The SF-50 form for a Justice who is retiring also goes to the Administrative Office of the U.S. Courts Judges Compensation and Retirement Services Office. Justice O’Connor’s SF-50 form indicates she retired under 28 USC 371(b). The form itself, however, is confidential and cannot be released.
3. That same day (October 19), I sent this follow-up:
Dear Ms. Arberg:
Thank you for your response. Please permit me a few follow-up questions:
1. Here is the SF-50 form that I understand has been in effect since 1991: http://contacts.gsa.gov/webforms.nsf/0/1494EA39194E69A585256CFD0051B357/$file/sf50.pdf. Would you confirm that that is the form that was completed in connection with Justice O’Connor’s retirement?
2. Would Justice O’Connor’s consent to release of the SF-50 form (with appropriate redactions to eliminate any confidential information (e.g., SSN)) enable you to release it? If not, what other obstacles would prevent its release?
3. Would you please tell me how precisely Justice O’Connor’s SF-50 form indicates that she retired under 28 USC 371(b)? Specifically, what information set forth in which boxes indicates that?
4. I gather from the SF-50 form that it is executed by the “approving official” and does not bear the signature of the retiring official. Would you please confirm that Justice O’Connor’s signature is not on her SF-50 form? Would you please inform me which “approving official” signed the SF-50?
5. What “Approval Date” does Justice O’Connor’s SF-50 form bear (presumably in Box 49)?
6. What “Effective Date” does Justice O’Connor’s SF-50 form bear (presumably in Box 4)?
As I understand it, the answers to my questions 1, 3, 4, 5, and 6 should be immediately available from the SF-50 form for Justice O’Connor that you have reviewed, and you evidently already have the information responsive to my question 2 (as that is presumably the basis for your statement that the form “is confidential and cannot be released”). I therefore would be grateful if you would answer my questions today or tomorrow (or, if and to the extent that you decide not to answer them, you so inform me).
4. On October 20, I received this reply (and the referenced attachment) from Ms. Arberg:
Dear Mr. Whelan,
The form the Court uses is actually an adaptation of the SF-50. I have attached a blank SC250 form for your reference. The citation for the Title and Section of the Code under which the Justice retired, 28 U.S.C. 371(b), is listed on line 18 under “Authority.” The effective date, January 31, 2006, is listed on line 17. Internal correspondence from the Justice to the Office of Budget and Personnel at the time of her retirement also confirms the Justice’s retirement effective January 31, 2006 under 28 U.S.C. 371(b)(1).
I hope this information is helpful.
Kathleen L. Arberg
5. That same day (October 20), I sent Ms. Arberg this follow-up.
Dear Ms. Arberg:
Thank you for the additional information. I hope that you won’t mind if I ask a few more clarifying questions:
1. For the SC250 for Justice O’Connor, would you please tell me (a) who signed in Box 36(a), (b) what date is shown in Box 36(b), and (c) what title is shown in Box 36(c)?
2. With respect to the internal correspondence that you refer to from Justice O’Connor to the Office of Budget and Personnel: (a) Will you please provide me a copy of the correspondence? (b) If not, would you please tell me (i) how many such items of correspondence there were; (ii) the date of each such item; and (iii) the substance of each communication?
6. On October 25, I e-mailed Ms. Arberg to ask: “May I trouble you to let me know whether I may expect additional information from you in response to [my October 20 e-mail]?” I have not received a response to my October 20 or October 25 e-mails.