As spotted by Baggage Carousel 4....
Justice O'Connor's resignation is worded extremely oddly. In fact, according to the way it's worded, she isn't actually retired at all. She's still on the bench, and -- more importantly -- she'll not be coming off the bench until someone else retires first.
This is the resignation letter as reported by CNN:
"This is to inform you of my decision to retire from my position as Associate Justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor [emphasis added]."It has been a great privilege, indeed, to have served as a member of the Court for 24 terms.
"I will leave it with enormous respect for the integrity of the Court and its role under our constitutional structure."
Sincerely,
Sandra Day O'Connor
Bush cannot nominate someone to the bench until there's a vacancy. According to this resignation letter, there isn't a vacancy until after someone has been nominated. In programming terms, this would be a deadlock, and no progress is made beyond this point. A cannot proceed unless B happens first. B cannot proceed unless A happens first. Thus, neither A nor B can proceed.
The only way for O'Connor to retire now would be for someone else to retire. This way, Bush (or whomever is president then) could nominate a replacement (legally) and say "this is O'Connor's replacement", at which point she retires, leaving a new vacancy to be filled as well.
You know, seriously, for someone who writes legal documents all day long, and is well versed in the exacting science of legalese (and is, by definition, considered one of the top nine experts in the country on the topic), this is a pretty glaring error.
Right now, as it turns out, if Bush begins the appointment process, he's doing so illegally (admittedly, on a technicality), but if someone in the Senate wanted to make waves without using the filibuster, this would be an interesting way to do so...
actually, there's no illegality as I understand it. There's nothing that says there are NINE supremes - Roosavelt tried to add two during the early days of his administration when the SC was blocking all of his New Deal legislation.
The Judicial Circuits Act ( http://en.wikipedia.org/wiki/Judicial_Circuits_Act ) specifies the number of Justices on the Supreme Court as nine.
As it was reported initially, the chief is going to retire later this year, and there was some sort of courtesy involved in her announcing first, even if she won't actually be doing it first. The language makes sense in that context.
It is perfectly legal for her to resign in this manner, there's not a conspiracy or any other thing going on here.