Wednesday, July 06, 2005

On one sneaky little clause

Okay, so I've spent the past few days trying to come up with something to say about Justice O'Connor's impending resignation - something more profound than "oh, shit." I don't fault her for a minute for wanting to spend more time with her husband, whom I understand to be in poor health. That doesn't stop me from peeing myself like a kicked Pomeranian at the thought of her potential replacements. I'm sure Bush will be happy to replace "Swing Vote" O'Connor with a justice who will never waver in his determination to follow Antonin Scalia around like a devoted puppy (sidenote: offhand, I can't think of a Scalia opinion that I've agreed with outside of Kelo v. New London, and I think he's the worst kind of conservative supremacist, but I'm also very glad to have him on the Supreme Court, which is another post for another day).

Anyway, I'm a skimmer, but Matt over at Basket Full of Puppies reads the footnotes, and I'm glad he did:
By making her retirement, and hence the vacancy that an appointment would fill in the first place, contingent upon confirmation of a successor, O'Connor has single-handedly stolen Article II, Section 2, Clause 3 of the Constitution (recess appointments) from the Executive Branch and--it needn't be said--from Bush personally. A recess appointment isn't confirmed by anyone, and O'Connor's conditional clause means that absent confirmation, there isn't even a vacancy, meaning she never retired in the first place.

Unwilling to get caught in the Newsweek single-source thing, I checked, and yah, you betcha: "This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States, effective upon the nomination and confirmation of my successor," she wrote to President Bush (emphasis mine).

I'm sure there are many of you out there who are far better versed than I in constitutional law and who will be more than happy to put a rifle round through my little balloon of happiness, but until that happens, I'm going to start sleeping nights again. And I'll do so with a smile on my face, because I always thought Justice O'Connor kind of rocks, but now I'm convinced that she, in fact, rawks. Hard core. You have no idea.

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