Will 8 be enough for court?

If Senate Republicans refuse to confirm anyone President Barack Obama nominates, the Supreme Court will operate with eight justices not just for the rest of this term but for most of the next one as well.


WASHINGTON (AP) — The Supreme Court has managed to function effectively at less than its full nine-member strength for two extended periods in the past 50 years.

The question now is whether the death of Justice Antonin Scalia in the middle of the court term and a polarizing presidential campaign will make it harder for the justices to get their work done.

Scalia's colleagues will mourn their fellow justice this week before resuming their work on a lineup of cases fraught with political implications.

Their test will be whether they can reach decisions in cases involving abortion, labor unions, President Barack Obama's health care law, voting rights, immigration and other topics without reaching an inconclusive 4-4 vote.

Adding spice to the mix is the unusual makeup of the court, with four liberal-leaning Democratic appointees and four conservative-leaning Republican appointees.

One of the term's biggest cases will be argued on March 2, when the justices weigh whether Texas' strict regulation of abortion clinics impinges on a woman's constitutional right to an abortion.

Scalia would have been a sure vote to sustain the regulations.

If Senate Republicans hold fast to their vow not to confirm anyone Obama nominates, then the Supreme Court will operate with eight justices not just for the rest of this term but for most of the next one as well.

High court terms begin in October, and the 80 or so cases argued in the course of a term typically are decided by early summer.

The court would be unable to issue nationwide rulings on any issue in which the justices split 4-4.

"That would essentially be putting the Supreme Court in gridlock for two terms," said Elizabeth Wydra, president of the Constitutional Accountability Center.

Some Supreme Court law clerks who worked at the court when there was a prolonged vacancy recalled that business proceeded apace, with only a few split decisions.

At the same time, the justices postponed consideration of some major cases while they awaited a new justice.

"The main impact of an eightman court that term ... was that the court decided few cases involving significant constitutional law," Taylor Reveley, a clerk for Justice William Brennan in 1969 and '70 and now president of the College of William and Mary.

The most notable of the deferred cases may have been challenges to the death penalty, according to "The Brethren."

Harry Blackmun joined the court in May 1970, after the Democratic-controlled Senate rejected President Richard Nixon's first two choices. It was two more years, after the retirements of two more justices, before the court took up the issue and struck down every state death penalty statute.

In the 1987-88 term, President Ronald Reagan's first two high court picks failed before Justice Anthony Kennedy was confirmed in February 1988.

Once Kennedy came on board, the justices ordered new arguments in four cases in which they had been split 4-4.

President to pay respects at court, won't attend funeral

WASHINGTON — President Barack Obama and first lady Michelle Obama will visit the Supreme Court on Friday to pay their respects as Justice Antonin Scalia lies in repose but won't attend Scalia's funeral.

White House spokesman Josh Earnest said Wednesday that Vice President Joe Biden and his wife, Jill Biden, would attend the funeral Saturday at the Basilica of the National Shrine of the Immaculate Conception in Washington.

Scalia died on Saturday at age 79. He joined the court in 1986 and was its longest-serving justice.

Democrat urges Obama to pick "mainstream' nominee

WASHINGTON — Sen. Charles Schumer, D-N.Y., said Wednesday that the president should pick a "mainstream" nominee to fill the vacancy on the Supreme Court.

Schumer said the president should choose someone who can garner support from Democrats and Republicans.

Schumer, a member of the Judiciary Committee, pointed out that both of Obama's high court picks, Justices Sonia Sotomayor and Elena Kagan, received bipartisan confirmation.

Cracks begin to show in Republican opposition

WASHINGTON — Concerted Republican opposition to considering the president's pick for the Supreme Court showed early signs of splintering Wednesday as a few more influential senators opened the door to a possible confirmation hearing. One Republican even encouraged the president to nominate a candidate from his state.

Texas Sen. John Cornyn, the No. 2 Republican in the Senate, did not rule out a committee hearing on the forthcoming nominee to replace the late Justice Antonin Scalia. Sen. Orrin Hatch, R-Utah, who sits on the committee, said he opposes a filibuster to prevent a vote, as some Republicans have suggested.

Sen. Dean Heller said chances of Senate approval were slim but said his home state of Nevada should have a voice in the debate. "Who knows? Maybe it'll be a Nevadan." — World-Herald press services

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