Could A Retired Justice Fill In While Scalia’s Seat Remains Empty?

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Kevin Daley Supreme Court correspondent
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The late Justice Antonin Scalia’s empty seat on the bench of the U.S. Supreme Court has taken on an identity of its own in the pages of the nation’s satire rags.

“Antonin Scalia’s Vacant Supreme Court Seat Has Become A Hookup Spot For Local Teens,” one headline reads.

The Onion reports: “Teens Throwing Rocks At Overgrown, Long Vacant Supreme Court Seat.”

The prospects of a ninth justice joining the high court before the conclusion of its upcoming term appear slim. Though some Republicans on the Senate Committee on the Judiciary have expressed openness to convening hearings for President Barack Obama’s nominee to replace Scalia, Judge Merrick Garland, Senate Majority Leader Mitch McConnell has signaled any action on his nomination is unlikely. The political calculus may well change should Democratic presidential nominee Hillary Clinton prevail in the November election, but even an expedited post-election confirmation process is unlikely to yield a new justice until the next calendar year.

In addition, Clinton has indicated that she will consider other nominees should she ascend to the presidency. In that case, the long process of vetting candidates — both by the Clinton White House, the FBI, and important third party actors like the American Bar Association — would begin anew, to say nothing of the ensuing political fight in Congress. (RELATED: Clinton Hints She Would Not Renominate Merrick Garland To SCOTUS)

The current stalemate raises the question — might a retired Supreme Court justice stand in the breach until a ninth is confirmed?

A retired justice maintains some prerogatives. They are allowed to retain law clerks, and may still adjudicate cases in the district or circuit courts. Justice Thomas Clark took part in nearly 400 decisions in the circuit courts in the years after his retirement, according to professor Minor Myers III of Brooklyn Law School. Justices Lewis Powell and Willis Van Devanter also exercised the privilege regularly, but were not nearly as prolific.

There are currently three living former justices of the Supreme Court: Justice John Paul Stevens, who retired from the high court at age 90, has declined to continue hearing cases. Instead, he became something of a regular on the lecture circuit, and published a book called “Five Chiefs,” about the chiefs justice with whom he practiced and served. However, Justices Sandra Day O’Connor and David Souter continued to hear cases in the years since they left the chambers of the U.S. Supreme Court.

Might one of them assist in the interim? Paul Larkin, senior research fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies says such a scenario is unlikely. Before joining Heritage, Larkin served for a decade at the U.S. Department of Justice and argued nearly 30 cases before the Court.

“A retired justice can serve on a lower federal court because he or she still had his or her commission, and the Judicial Code empowers the Chief Justice to appoint him to those positions,” Larkin told The Daily Caller News Foundation. However, “a retired justice cannot serve as a temporary Supreme Court justice because the Chief Justice cannot appoint him or her to that position. Only the President (with the Senate’s consent) can do so.”

Larkin also explained that the manner in which a justice departs the Court is relevant to the question. A justice who simply retires may assume senior status. A justice who resigns, on the other hand, also resigns their commission and is no longer an Article III judge.

So though she’s moved one chair closer to Chief Justice John Roberts, Justice Elena Kagan will continue taking notes in conference and chairing the cafeteria committee for the time being.

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