O’Connor’s Staying on Court May Carry Little Weight

Justice Sandra Day O’Connor reaffirmed Monday that she would remain on the Supreme Court until her successor was confirmed, but her presence is likely to have more symbolic than practical significance.

That is because a justice’s votes count only when an opinion is issued, not when the high court hears a case.

At first glance, O’Connor would look to be a tie-breaker for cases heard in October or November, before President Bush’s nominee to succeed her will probably be confirmed by the Senate.

But the opinions in those cases are not likely to be issued until early next year, after O’Connor presumably would be gone. Therefore, her vote would not count, and the court could find itself split 4-4.

In such instances, the justices can order the case to be reargued before the full nine-member court.

When O’Connor sent a retirement letter to the president on July 1, she closed by saying that her retirement would be “effective upon the nomination and confirmation of my successor.” She also said she was leaving to spend more time with her husband.

White House aides said Bush called O’Connor on Monday morning to tell her he was nominating John G. Roberts Jr. to be chief justice. In that call, she reiterated her pledge to stay on the court until Bush won confirmation for her successor.

The White House said it would like to have Roberts confirmed as chief justice by the time the court convened on Oct. 3. Senate Majority Leader Bill Frist (R-Tenn.) said Monday that he expected to have a confirmation vote before the full Senate by late September. It is unlikely, however, that O’Connor’s successor also would be confirmed by the court’s opening day.

Senate Democrats cited O’Connor’s presence as a reason for not rushing to choose and confirm a second Bush appointee.

Her presence could prove significant if the Senate were to block Bush’s choice for her successor. But if the president’s nominees win confirmation by December, she is not likely to cast decisive votes.

On Oct. 5, two days after the court’s term begins, the justices are scheduled to hear a major test of the nation’s only right-to-die law. Oregon permits doctors to prescribe lethal medication to terminally ill individuals who wish to hasten their deaths.

The Bush administration has sought to nullify the law by threatening doctors with a loss of their right to prescribe medication. They rely on federal drug control laws and argue that prescribing medication to end a life is not a legitimate medical use of these drugs.

Oregon officials and two lower courts have said that the state has the power to regulate the practice of medicine.

Two days after the argument in the Oregon case, the justices will meet behind closed doors to vote. If the court splits 5-4 with O’Connor in the majority, her vote would look to be decisive.

But because justices typically work months on their majority and dissenting opinions, the ruling probably would not be announced until early next year, after O’Connor’s successor is likely to have been confirmed.

In such a case, the court would be split 4-4, and the new justice would have to be included in a rehearing of the case.