Law Profs. Debate: What Would Happen if O'Connor Takes Back her Resignation?

10/19/2005 04:29 pm ET | Updated May 25, 2011

What if Harriet Miers does not win confirmation to the U.S. Supreme Court, or withdraws before the vote?

And what if moderates- alarmed by the presumed determination of President Bush to present a new nominee just as conservative as Miers - somehow persuade sitting Justice Sandra Day O'Connor to rescind her resignation- now set to take effect with her successor's confirmation?

I've researched the matter by contacting several distinguished law professors who are listed as contributors on the American Bar Association article entitled "Selecting Supreme Court Justices."

The majority of distinguished legal scholars that responded to my query seem to think that if Justice O'Connor should happen to change her mind and opt to remain on the Court, President Bush would probably be compelled to honor her request.

Here's what these scholars (and a couple of others who have been brought into this discussion) are telling me:

In my view, the president would have to respect O'Connor's wishes"- Elliot E. Slotnick, Professor of Political Science and associate dean of the graduate school at the Ohio State University.

"I'm not a legal historian, but I'm inclined to agreed with Elliot here. Justices serve for life (assuming good behavior) and there's no provision for a President to force a removal. So long as O'Connor is still on SCOTUS--as she is--she can stay, notwithstanding her expressed statement that she would step down when her successor is confirmed.

Of course, were your hypothetical suggestion to occur and were Bush to move ahead with the appointment process, we'd be facing a potential constitutional crisis--defined as a situation for which the constitution itself provides no mechanism for resolving. (The Civil War was a constitutional crisis; the 2000 election was not.)" - Ellen Ann Andersen, Assistant Professor ,Department of Political Science, Indiana University/Purdue University at Indianapolis.

"She resigned effective on the qualification of her successor. If Miers withdraws, there is no nominee, and until one is approved . . . So there would be no need to rescind the resignation;actually the risk would be that she would change the effective date to immediately or a time certain"- Steven L. Wasby, Professor Emeritus of Political Science, Rockefeller College of Public Affairs and Policy, State University of New York at Albany.

"I agree with Dr. Slotnick, and I would add that the President's sense of obligation would be both institutional (he should not run roughshod over someone in a coequal branch) as well as political (if SDO decided to hang around and (President Bush) was seen as pushing her out, his approval rating could go single-digit).

Then again, in an odd way the President might not even matter. Even if (Bush) was not inclined to respect her wishes, she'd keep her seat as long as there were 51 Senators who were so inclined. (Bush) could send a nominee to the Senate, but the nominee could conceivably be rejected out-of-hand strictly on the grounds of SDO wanting to stick around. No confirmation, no replacement, no goodbye party.

Such a scenario would naturally raise a bunch of separation-of-powers migraines (an eventuality which could convince some of those 51 Senators to vote to confirm anyway), but it's certainly possible"- Stephen Lichtman, U.S. Supreme Court lecturer, University of Vermont.

"O'Connor has not actually resigned, which is why she is continuing to serve as an Associate Justice. As far as I know, her expression of intent is open-ended, and she is technically free to remain on the Court as long as likes. If Miers were not confirmed and O'Connor decided to remain on the Court, I think we would hear sighs of relief from members of both political parties"- William G. Ross, Professor of Law at Samford University’s Cumberland School of Law in Birmingham, Ala.

Not every Supreme Court expert agrees with these assertions, however.

"I don't think she can rescind. I think the retirement letter commits her to its terms as soon as it is delivered. Otherwise, the retiring justice would have control over the choice of her successor, and that can't be right"- Richard D. Friedman, Supreme Court scholar and the Ralph W. Aigler Professor of Law at the University of Michigan Law School.