Motivated reasoning in action

Many people have made note of Justice O'Connor's retirement letter, indicating that her retirement is effective upon the nomination and confirmation of her successor. I've told friends that this precluded a recess appointment to replace her, as no vacancy (necessary for recess appointments) will exist to fill unless the Senate confirms somebody, and that if that doesn't happen she'll take her seat in October. It's happened before (see below) so I thought this was conventional wisdom.

Apparently it isn't. That in itself doesn't surprise me, but the contortions of fact and logic some are willing to perform in order to raise a constitutional objection to this are enlightening.

On the National Review Bench Memos blog, Matthew Franck, a political science prof at Radford, argues that O'Connor's conditional retirement is a "legal nullity", because "(f)or the president to appoint, there must be a vacant seat." Conflating nomination and appointment (two powers given separately in Article II) he goes on to say that Bush's nomination cannot proceed without the vacancy existing and, thus, because her conditioned retirement is unconstitutional, O'Connor has already retired. Conservative blogs are echoing this conclusion with unfounded but authoritative-sounding statements like "relevant law seems to say the President cannot nominate a Justice until there is a vacancy."

Edward Whelan points out the conflation, and Jim Lindgren at Volokh Conspiracy explains that Earl Warren served almost an entire term after announcing his retirement when the confirmation of his successor (intended by LBJ to be Abe Fortas) was bogged down in controversy. I think (I'd have to check to be sure) a justice continued to serve while his successor faced confirmation as far back as John Adams.

Franck sticks to his guns, however. Responding only to Whelan's post on Bench Memos, he says that even if the nomination/appointment distinction has bite, O'Connor's failure to retire until confirmation of her successor "nullifie(s) the president's recess appointment power" and that violates the Constitution. I'm surprised he's not more upset, because from that way of looking at it, every other member of the Supreme Court has nullified the recess appointment power as well just by not retiring. The power to fill vacancies during recess exists to ensure that vital functions of government can be performed if a position is vacated and Senate action is delayed, not a privilege of the President to name people to prospective seats. If O'Connor follows Warren's example she'll continue to serve if no successor is confirmed. In other words, there's no recess appointment power where there is no need for a recess appointment.

Beyond the third branch precedents, members of the president's cabinet regularly continue to perform their duties until their successors are confirmed, as well they should. Since the president's powers to nominate and appoint justices and cabinet members derives from the same clause of Article II Section 2, there's no reason why they shouldn't be governed by the same practices.

Given his gratuitous swipe at O'Connor in the first NRO post and condescending tone in the second, it's clear that Franck is looking for a reason to diss O'Connor. Furthermore, his assumption that her conditional resignation is unconstitutional, rather than Bush's nomination of a successor without a vacancy existing, and the ridiculous recess appointment argument suggest that Franck is just looking for a way to strengthen the President's position.