Is the Supreme Court counting on getting a ninth justice in January?
WASHINGTON — Sen. Jeff Flake’s call to confirm Merrick Garland for the Supreme Court if Hillary Clinton wins next month has reignited the public debate over the stalled nomination — and the court’s own calendar suggests that the eight current justices may be watching to see if that is a real possibility.
In an interview Thursday with Politico, Mr. Flake — an Arizona Republican who serves on the Senate Judiciary Committee — said Republicans should move sooner rather than later if GOP nominee Donald Trump loses the presidential race.
“If Hillary Clinton is president-elect, then we should move forward with hearings in the lame duck,” Mr. Flake said. “That’s what I’m encouraging my colleagues to do.”
While it is unclear whether Republican leaders will listen to Mr. Flake, who has refused to endorse Mr. Trump and has broken with his party on issues in the past, the new Supreme Court calendar suggests that the remaining eight justices are altering their workload in case they have a new colleague on the bench in January. On Friday, the court released a bare-bones calendar for the two-week period of oral arguments that begins Nov. 28, listing only eight cases to be argued over six days. In normal times, the court would consider something closer to 12 cases in such a period.
There are other reasons to think the court is storing cases in hopes of having a full membership of nine by the end of the year. Three cases the court granted in January 2016, before Justice Antonin Scalia died, have yet to be scheduled for oral arguments. Others granted months later have already been heard by the court.
It seems likely that the court fears it will be tied 4 to 4 on one or more of the cases and is hoping to have a tiebreaker on board by the time they are heard.
The only way a new justice could join the Supreme Court in time to make the court’s January hearing schedule is if Ms. Clinton and Senate leaders decide to consider Judge Garland’s nomination in a lame-duck session.
It would be difficult for a new Senate to act quickly enough on a new nominee by Ms. Clinton or Mr. Trump to have the person in place by the court’s final oral argument session of the current term, scheduled for April 2017.
White House officials, for their part, said they would welcome any change of heart by Republicans. White House press secretary Josh Earnest told reporters Friday, “We obviously welcome the comments of Sen. Flake,” and added that he has “special influence here” because he sits on the Judiciary Committee.
Asked whether Judge Garland has offered to withdraw his name from consideration if Ms. Clinton wins the election, so she could offer her own nominee in 2017, Mr. Earnest rejected that idea.
“I don’t know why he would wait around for 200 days and then pull out at the very moment that it seemed likely that he was going to get confirmed,” he said. “So I think that’s not likely to happen.”
While it remains unclear whether the court will have a full complement of justices before President Barack Obama leaves office, there is little question that one of the three currently delayed cases stands to be one of the most consequential of the term. Trinity Lutheran Church v. Pauley raises the issue of whether churches must be treated the same as other organizations applying for state aid even if the state’s constitution forbids any spending on religious groups.
The Columbia, Mo., church applied to be part of a state initiative that recycles tires and uses the pulverized rubber to make playground surfaces safer. Although the church’s application ranked high in the state’s 2012 Playground Scrap Tire Surface Material Grant Program, it was ultimately turned down.