by Matt Barr

Betting on O'Connor to step down

Bill Kristol thinks Ms. Justice O'Connor will announce her retirement next week:

There are several tea-leaf-like suggestions that O'Connor may be stepping down, including the fact that she has apparently arranged to spend much more time in Arizona beginning this fall. There are also recent intimations that Chief Justice Rehnquist may not resign. This would be consistent with Justice O'Connor having confided her plan to step down to the chief a while ago. Rehnquist probably believes that it wouldn't be good for the Court to have two resignations at once, so he would presumably stay on for as long as his health permits, and/or until after Justice O'Connor's replacement is confirmed.

Consider this in light of the speculation last month that Rehnquist would retire because O'Connor had only hired three clerks:

Justice O'Connor has not yet hired a fourth clerk -- which is highly unusual for her, since she tends to be on the early side in her clerk hiring.

Okay, Article III Groupie will now go out on a limb. She will offer you what she warns you will be the rankest speculation. Here's her personal (and completely unsubstantiated) theory: SOC is saving a fourth spot for one of Chief Justice Rehnquist's hires, in case the Chief retires from the Supreme Court at the end of this Term.

This is not as daring a prediction as it might seem. First, there is a longstanding tradition of the remaining justices making a strong effort to pick up the hires of their departing colleagues. For example, as recounted here, Judge Kozinski was hired by Chief Justice Burger after Justice Douglas announced his retirement (even though Burger and Douglas weren't exactly ideological soulmates).

Second, Chief Justice Rehnquist and Justice O'Connor have a decades-old friendship, dating back to when they were classmates at Stanford Law School -- where they finished first and third, respectively, in their graduating class.* If anyone has a good idea of the Chief's plans, it would be SOC. (As for why the Chief even hired clerks for next Term, recall that he typically hires in June -- meaning that he would have hired his OT 2005 clerks in June 2004, before he was diagnosed with thyroid cancer.)

It struck me at the time, though I didn't blog about it, as odd that you would have two Justices, one who had hired his full complement of clerks and one who hadn't, and you would speculate that it meant the one who had would retire. Doesn't it make at least as much sense to conclude that Justice O'Connor did not hire a full complement of clerks because she planned to step down?

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