Judicial selection, including judicial resignations, nominations, and confirmations, is comprised of a patchwork of traditions, rules, and constitutional provisions. The Constitution does not explicitly detail a formalized process at any stage of the appointments process, but checks and balances have organically developed and changed over time as the process has become more politicized. The question becomes, then, whether conditional resignations comport with this system or the Framers’ intent. At the Supreme Court level, conditional resignations are rare. Only a handful of conditional resignations have ever been submitted. At the court of appeals and district court levels, it is unclear how widespread this practice is. Neither Congress nor the President has prohibited conditional resignations. Indeed, resignations subject to a date certain have generally been accepted.
This Comment explores the constitutionality of conditional resignations within the context of judicial selection. It also includes a discussion of the politicization of judicial selection for the federal bench and explores the constitutional limits of conditional resignations. Next, this Comment discusses the next natural step for judicial selection—that is, regulation. If the judiciary tips the delicate balance by submitting problematic conditional resignations, attempts to regulate judicial departures may naturally follow. This Comment ultimately concludes that conditional resignations protect judicial permanency in office by providing another check and balance in the patchwork of traditions, rules, and constitutional requirements in the appointments process. As an extension of these changes, the conditional resignation can be interpreted as judges asserting more control over their life tenure and independence.
Allison A. Luczak,
A Delicate Balance of Life Tenure and Independence: Conditional Resignations from the Federal Bench,
93 Marq. L. Rev. 309
Available at: http://scholarship.law.marquette.edu/mulr/vol93/iss1/18