NPR logo

Supreme Court in Transition

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript
Supreme Court in Transition


Supreme Court in Transition

Supreme Court in Transition

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript

Nina Totenberg discusses how the Supreme Court will function as Sandra Day O'Connor prepares to step down. She also examines the history of the presidential-Senate relationship when it comes to high court vacancies.


Washington has worked itself into quite a swivet over the impending retirement of Justice O'Connor. With us to talk about what's going on, NPR legal affairs correspondent Nina Totenberg.

Good morning to you.


Good morning, Susan.

STAMBERG: We talk about the Supreme Court justice's retirement as imminent because she has not actually stepped down yet, right? So explain that to us.

TOTENBERG: She announced her retirement effective upon the confirmation of a successor. And that means she continues to function as a justice of the United States Supreme Court. She gets all the briefs that are filed. She makes decisions in death penalty cases, last-minute decisions in the circuit that she's responsible for. She continues to act as she would normally.

STAMBERG: Mm-hmm. Well, let us assume for the sake of argument that we arrive at the first Monday in October--That's when the court actually begins to hear cases--and there's been nobody confirmed to take her place. What happens?

TOTENBERG: Well, as I understand it from people I talked to at the court, she would sit and hear cases, and if she's a fifth vote, a deciding vote, they likely would hold the decision, expecting somebody to be confirmed, and then would have the case re-argued. But the hope is that they can jigger around the calendar and make the less controversial cases earlier in the term so she would be sitting on cases in which her vote would not be decisive. But the court would have a full complement of justices, a full complement of people writing opinions and would not be, you know, in any way short-handed.

STAMBERG: Mm-hmm. That's a very elaborate scheme, isn't it? Some fancy dancing there. But these justices actually do begin meeting in September to talk about which cases they're going to hear. She would be at that table, too?

TOTENBERG: She would be at that table, too. She would be casting votes to decide which cases to hear. And, of course, this makes it rather difficult for Republicans. The party that wants their nominee confirmed is saying, `The court is terribly short-handed. What are we doing injuring the third branch of government?' Well, that won't be the case.

STAMBERG: Right, because it means that they're not short-handed at all. They're perfectly capable, two hands, joining them all at the table.

TOTENBERG: That's right. That's right.

STAMBERG: OK. Let's look for a minute at this meeting with the leadership today, the Senate leadership and the president. What is the history of presidents consulting with the Senate when they go about making decisions on who they will appoint to the Supreme Court?

TOTENBERG: Well, Susan, a lot depends on how big a majority the president has in the Senate, how much internal strife he has in his own party, how much capital he wants to expend. I'll tell you about a couple of examples. There's the famous one involving President Hoover, who invited Senator Borah in and showed him the list of people he was considering nominating in ranking order, and Borah looked at the list and said, `Well, I like the list, but you've got it backwards. The guy at the bottom should be at the top.' And that's how Benjamin Cardozo got appointed to the court.

STAMBERG: Oh, really?

TOTENBERG: And then, also, Senator Hatch, Orrin Hatch, the--who served for many years as chairman of the Judiciary Committee and now has rotated off being chairman, he writes in his autobiography about how President Clinton called him and said he was thinking of naming Bruce Babbitt to the Supreme Court, and Hatch said to him, `Well, that could be real trouble for you.' And Clinton said to him, `Well, who would you suggest,' basically? `Who are moderate liberal people I could get approved?' And Hatch suggested Ruth Ginsburg and Steve Breyer, and those two ended up being President Clinton's nominees, and they sailed through with great ease.

STAMBERG: Yeah. Yeah. Nina, I know you never deal with rumors, but, gee, they were flying on Friday about Chief Justice Rehnquist, that that was going to be the day on which we heard that he was stepping down.

TOTENBERG: Well, the chief justice has cancer, so people are speculating about this, and I think the White House in particular is speculating that he's gonna step down, and Washington proved its mettle as the rumor capital on Friday. But anybody who actually knows anything about the court kept calling up and finding out nothing was going on.

STAMBERG: Right. You, for example.


STAMBERG: Thank you very much, NPR legal affairs correspondent Nina Totenberg.

TOTENBERG: Thank you, Susan.

STAMBERG: You're listening to MORNING EDITION from NPR News.

Copyright © 2005 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.