I got some grief four years ago, on the occasion of Justice O’Connor’s announced intention to retire, when I argued that until she was gone for keeps there was no vacancy even to nominate to–and that it was improper for her to stay on at the beginning of the October 2005 term. I was too much of a purist, I guess, and I think Ed is right that staying until appointment is permissible–even if retirement of A and appointment of B are simultaneous.
As for Souter’s retirement, I have seen it reported that he told his fellow justices he would not return after the summer recess, just as his letter indicates. If this remains his settled purpose, it has some potential impact on the confirmation calendar for Judge Sotomayor. Here’s why:
Yesterday the Court set Citizens United v. FEC (the Hillary: The Movie case) for reargument–but not during the new term that will begin October 5. Instead, briefs are requested for deadlines in late July and August, and oral argument is scheduled for September 9. With the Senate set for its annual summer recess from August 10 through September 7 (Labor Day), the Democrats will naturally take the view that Judge Sotomayor should get a confirmation vote before the recess. In fact, Sen. Charles Schumer and White House press secretary Robert Gibbs already picked up on this yesterday, arguing that the Court needs to be at full strength in September to hear the Citizens United case. And it is difficult to imagine a full-dress debate on Sotomayor’s nomination before August 10, with the vote postponed until September 8, while a postponement of the debate and vote until after Labor Day would leave the Court at eight justices when this important case is heard.
So did the Court set this argument calendar with a view to slyly giving the Senate a push on the Sotomayor nomination? That seems unlikely. So why schedule the unusual special session? There is precedent for this in campaign finance cases. McConnell v. FEC was argued on September 8, 2003, with a decision coming down on December 10 of that year. It seems the Court likes to square away campaign finance cases before the electoral season goes into full swing. So look for a decision in Citizens United before the new year.
But intentionally or not, the Court just made it harder for Republicans to push for any extra time on the Sotomayor nomination. That is, if Justice Souter really means to return to New Hampshire for good.