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Justices Look Toward New Colleague, Whomever It Shall Be

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By Casey C. Sullivan, Esq. on November 16, 2016 1:57 PM

As chaos reigns in Washington, the Supreme Court is experiencing a bit of a lull. There are no arguments this week, no relists, and no interesting orders.

But that relative quiet seems to have given the justices time to reflect on the changes ahead. For some of the justices, that includes a recognition that the Court's vacant seat might soon be filled.

"We Can't Afford for a President to Fail"

Justice Scalia passed away on Valentine's Eve, 2016, over nine months ago. It has now been 245 days since President Obama nominated D.C. Circuit Chief Judge Merrick Garland to that vacated seat, but unprecedented obstruction by Senate Republicans has meant that Garland's nomination has gone nowhere. That's left the Court short-staffed and the justices sometimes struggling to operate around a 4-4 split.

Now, barring an improbable and constitutionally questionable push by Obama to force Garland's nomination through, the responsibility for filling the Court's vacancy will fall to President-elect Donald Trump.

Some of the justices have made it known that they are not the world's biggest fans of President Donald. Justice Ginsburg wore her famous "dissent jabot" the day after the election, for example, in a move many took as a symbolic protest against the candidate, with whom she had sparred in the (recent) past.

In an interview yesterday, however, Justice Sotomayor took a more conciliatory tone. Speaking to Bill Press, she said that "we can't afford for a president to fail" and that "we have to support that which he does which is right and help guide him to those right decisions," SCOTUSblog's Molly Runkle reports.

"But we can't afford to despair," the justice continued, "and we can't afford to give up on pursuing the values that we and others have fought so hard to achieve."

Back to a Full Court?

Both the justices seemed to acknowledge that the Court would not be leaning in their direction for the foreseeable future. Speaking before the Jewish Federation of North America earlier this week, Justice Ginsburg said that "President Trump will fill it," referring to the long vacancy.

Justice Sotomayor seemed to look forward to that moment, if ever so slightly, saying that the current 4-4 divide can result in law "being applied differently across the country." The court "function[s] better as nine," she said.

Who Trump nominates for the Court's ninth seat remains to be seen. The president-elect put forward 20 jurists (and one senator) during his campaign as potential additions to the Supreme Court, but he has yet to announce any final decisions.

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