It is an interesting question. How is a nomination justified if there is no vacancy? What would happen if the President's will (recess appointment) butted heads with Judicial prerogative (timing of own retirement)? Would O'Connor step aside if a replacement was named through Constitutional means?
The plain language of Article II does seem to clearly express the conclusion that you reach ...
Article II
Section. 2.
Clause 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
I have never really understood the basis in law for O'Connor's retirement in full.
Bush has nominated O'Connor's replacement, but there is no vacancy to fill, she is still a member of the Court.
If Alito was confirmed and O'Connor did not retire, Alito obviously could not be sworn in because federal law currently limits the number of justices to 9.
Does that mean a President could name 50 justices and the Senate could confirm them all, but they could not be sworn in until a vacancy occurs?
I mean how is that any different than naming one justice and having him confirmed to a vacancy that doesn't exist?
Maybe someone could straighten it out...
The other 8 would probably boot her out.