Can a SCOTUS justice retire pending confirmation of replacement?

[MillennialModerate]

If a judge wants to retire can he retire pending a replacement being confirmed?

Or does he have to retire (to the point of no return) before a judge can even be appointed?

Another words can Breyer and Biden prevent McConell holding the seat vacant?

[brucejoel99]

Not only is the answer yes, but it's literally what O'Connor did. She wasn't supposed to still be on the Court at the beginning of their October 2005 term, but then Rehnquist died in September & the nominee for her seat (Roberts) was moved up to being the nominee for Chief, so she was able to stay on (through the Miers debacle) 'til Alito was confirmed in Jan. 2006.

[MarkD]

Sandra Day O'Connor is not the only example of a Justice doing it. The last two Chief Justices who retired did it as well. In 1986, when Warren Burger retired, he remained in the role as Chief until William Rehnquist was sworn in. Prior to that, back in 1968, Chief Justice Earl Warren handed in a letter of resignation, but it was contigent that he would remain in office until his replacement had been sworn in (Burger,) which did not occur for several months, well into 1969.

Those three -- O'Connor, Burger, and Warren -- are the only examples I can find. The rest of the Justices who retired appear to have all retired effective immediately.

[President Johnson]

As already stated, yes. Earl Warren actually wanted to retire in 1968. Lyndon Johnson nominated Abe Fortas to be his successor as Chief Justice, whom he appointed in 1965. At the same time, the president nominated Homer Thornberry to replace Fortas as Associate justice. But the senate didn't move on the nomination (I think Fortas had some issues, and he actually resigned from the court in 1969). As a consequence, Fortas withdrew and Warren stayed on until 1969, when Richard Nixon nominated Warren E. Burger to be the new Chief Justice, who was ultimately confirmed and seated on the bench.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

As already stated, yes. Earl Warren actually wanted to retire in 1968. Lyndon Johnson nominated Abe Fortas to be his successor as Chief Justice, whom he appointed in 1965. At the same time, the president nominated Homer Thornberry to replace Fortas as Associate justice. But the senate didn't move on the nomination (I think Fortas had some issues, and he actually resigned from the court in 1969). As a consequence, Fortas withdrew and Warren stayed on until 1969, when Richard Nixon nominated Warren E. Burger to be the new Chief Justice, who was ultimately confirmed and seated on the bench.

Fortas accepted exorbitant speaking fees, had to recuse himself in a case involving someone he'd tried to secure a pardon for from LBJ, and gave political advice to LBJ while serving on the Court. All of which seems quaint compared to the level of inside dealing that's become normalized today, of course.