The U.S. Senate has until Sept. 26, 2005 -- the start of the Court's next term -- to consider and confirm a replacement for retiring Supreme Court Associate Justice Sandra Day O'Connor. Given the political sensitivity of O'Connor's replacement, that Senate confirmation may not happen on time. What then?
O'Connor Could Continue to Serve
In her letter to President Bush, Justice O'Connor stated her retirement would become "effective upon the nomination and confirmation of my successor." In other words, until O'Connor is officially replaced, there is no vacancy on the Court and she could continue to serve during the Courts next term. Court observers recall Earl Warren continuing to serve as Chief Justice for over a year after his announced retirement, when the Senate stalled in confirming his successor.
Presidential Recess Appointment Another Possibility
A far more controversial possibility would be for President Bush to unilaterally name and install a temporary replacement for O'Connor by making a "recess appointment."
Recess appointments allow the president to fill vacancies without Senate confirmation. The recess appointment is one of the executive powers granted the president by the Constitution: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session." (Article III, Section 2)
A replacement justice named by Bush during the Senate's summer recess, for example, could serve until the end of the Supreme Court's next session, but would then require Senate confirmation to remain on the Court.
Clearly, the original intent of the Constitution was to grant the president the power to fill vacancies that actually occurred during a Senate recess. However, presidents have traditionally applied a much more liberal interpretation, using the clause as a means of bypassing Senate opposition.
Recess appointments, while controversial and almost always challenged in court, have happened before. President Kennedy appointed renowned jurist Thurgood Marshall to the Supreme Court during a Senate recess after Southern senators threatened to block his nomination. Marshall was later confirmed by the full Senate after the end of his "replacement" term. President Bush appointed Judge William H. Pryor, Jr. to the bench of the Eleventh Circuit Court during a recess, after the Senate repeatedly failed to vote on Pryor's nomination.
Bush's recess nomination of Pryor was challenged and ultimately upheld by the Supreme Court in March 2005.
