ABSTRACT
Article II, Section 2, Paragraph 2 of the United States Constitution states that the president shall nominate, and, by and with the advice and consent of the Senate, shall appoint judges to the Supreme Court. This process starts with either the creation of a new seat, or the death or resignation of a sitting justice. That Earl Warren chose to resign during the Johnson administration should occasion no surprise. Though nominally a Republican, Warren was a liberal in nearly every sense of the word. Facing a potential Republican victory in the 1968 election, Warren was determined to see a liberal replace him on the Court.6 Warren, though, was not unique in playing the "retirement game."7 Through 19.97, there have been fifty-three resignations from the Court. Thirty-one of them have been during periods in which the president was of the same party of the retiring justice, whereas only twenty-two were during opposite-party presidents. But even here justices can pick their moments. Though liberal Democrats Brennan and Marshall retired during a Republican administration (Bush's), they waited until the far more conservative Ronald Reagan left office before doing so.
