One of the favorite activities of Supreme Court watchers over the past few years has been to speculate as to when sitting members of the court will resign. This speculation was raised to fever pitch a while back after the media reported that Justice Sandra Day O'Connor's husband was said to have suggested on the eve of President Bush's election that she might retire if Bush were elected. Since then, Justice O'Connor has yet to announce her retirement. Similar rumors have circulated about Chief Justice William Rehnquist's plans. Such rumors and speculations have died down recently, however, as no justice announced such plans before the end of the last term and because O'Connor, in a television interview, suggested that, in fact, she had no plans to retire before the next term of the court.
Increasingly, the question of retirements on the court has intrigued scholars and concerned the various political factions in the nation. The court currently seems to have a split in most cases with major political overtones: Justices Antonin Scalia, Rehnquist and Clarence Thomas nearly always on the right; Justices Ruth Bader Ginsburg, David Souter and John Paul Stevens nearly always on the left; Justice Anthony Kennedy usually, but not always, on the right and O'Connor the "swing" vote. The recent decisions on affirmative action and state sodomy statutes made this lineup, and O'Connor's crucial importance, even more clear.
Of course, speculation centers not only on when O'Connor will retire, but when Bush wants her to retire. Most commentators believe that the president would like O'Connor to retire as soon as possible so that he may nominate a new, presumably conservative, judge or lawyer, to replace her. The reasoning behind this is simple. First, the president knows that his most long-lasting legacy may well rest with his nominees to the Supreme Court, and the more nominations he can make, the greater influence he will have had on the legal system of the nation. Second, given the current majority in the Senate, if the president nominates a conservative for the next available seat on the court, either the Democrats will be forced to go along with him or they will be forced to filibuster the nomination, an act that might damage them in the upcoming elections.
While speculation on matters of national politics is often dangerous, I think that there is another scenario which is more likely. If I were the president or his advisers, I would want the current justices, including O'Connor, to remain on the court until after the next presidential election. My reasoning goes as follows: If the president nominates a candidate before the next election, he risks an internecine battle between moderate and conservative Republicans. If his nominee is seen to be not conservative enough, he may well drive the most conservative of his followers out of the party into the arms of candidates like Pat Buchanan. On the other hand, if all of the present justices remain on the court until after the next election, then the president can tell his most conservative party members that they must support him, for to do otherwise and split the party risks the entire election and might hand it to the Democrats. In short, if O'Connor were to retire before the next election, she would create political risk for the president. If she stays in place, Bush has little risk and, indeed, may gain political advantage. Thus, I'm not in the least surprised that no justice has announced a retirement.
If I am right, such an announcement remains as far off as the next presidential election.
-- Mike Hoeflich is a professor at Kansas University's School of Law.