Office Pool

Yesterday I attended an American Constitution Society Supreme Court Preview luncheon, which was held over on 12th Street at the offices of Arnold & Porter. Very nice digs. But anyway, Walter Dellinger, who clerked for Hugo Black in Earl Warren's last year on the Court and was acting SG under Clinton for a year, was on the panel, and he made an interesting point. It went something like this:

The office pool this year is how many opinions will Justice O'Connor write? Since Justice O'Connor has retired, pending confirmation of her successor (Dellinger said Warren was the first person to do this), if there's a delay in confirming the president's second pick, then she might be there, even as long as a whole year. (That, btw, is what happened to Warren, with the Fortas mess.) So if she's there for a whole year, she might write eight or nine opinions. But if a successor is confirmed more quikly, she might not write any.

It's pretty clear that Justice O'Connor's vote cannot count in cases formally decided after her successor is confirmed. So that might mean some 4-4 decisions, if a successor is named relatively quickly. And those probably get put over for re-argument before the whole Court. (I add:) The contingency thing might also mean that Chief Justice Roberts (I don't think this is jumping the gun) and O'Connor herself might be reluctant to assign opinions to her. So even if she stays, she might not write a lot?

Anyway, something to think about.

Dellinger also voiced his concern that we might be headed for what he called a "train wreck" with this second nomination. If so, he said that a "nuclear option" showdown might result in a "legitimacy" debate over whether O'Connor's successor was legitimately confirmed.

Let's hope that that doesn't happen.