Justice Alito Addresses Prospect of an 8-Member Court
As the Supreme Court faces the increasing prospect of having an eight-member bench for a year or more, Justice Samuel A. Alito Jr. said on Tuesday that “we will deal with it,” noting that the court has had an even number of members in the past.
“What’s happened in the last week has been a great shock to us,” Justice Alito said at Georgetown University, offering a first glimpse into the internal workings of the court since the death of Justice Antonin Scalia. “We just started back in business hearing arguments yesterday. We’ll see what develops.”
Justice Alito made his remarks, which had been scheduled before Justice Scalia’s death transformed the court and transfixed the nation, on the day that Senate Republicans on the Judiciary Committee announced that they would not hold hearings to consider any nominee put forward by President Obama.
Graduating law students submitted questions for the justice, and one asked about life on an eight-member court.
“There’s nothing in the Constitution that specifies the size of the Supreme Court,” Justice Alito said. “There were times in the history of the court when the court had an even number of justices. They must have been more agreeable in those days.” In 1789, for instance, there were six seats on the court, by statutory design. In 1863, there were 10.
Asked about what sort of person should succeed Justice Scalia, Justice Alito demurred. “We don’t choose our colleagues,” he said. “Presidents choose. I have enough trouble with the questions that I have to decide.”
But Justice Alito did suggest that there were advantages to appointing a sitting judge, in light of the many kinds of legal issues that reach the Supreme Court.
“Given the way the interviews with senators occur beginning immediately on the announcement of the nomination, it’s very difficult for somebody who has not been dealing with the whole breadth of federal law that may come before the Supreme Court to be ready for those interviews,” he said, referring to the courtesy calls that have been standard for Supreme Court nominees.
This time around, it looks as if there will be fewer meetings because Democratic senators may be the only ones willing to meet with the nominee.
Justice Alito recalled an intense period of work to get ready for his confirmation hearings in 2006. His handlers worked to increase his stamina, he said, because the hearings can last into the night.
“We actually had one where we simulated that,” he said, referring to an all-day session to see “what would it be like to be answering questions for that length of time.”
Justice Alito’s career has intersected with the presidential campaign, he said. He once was a United States attorney in New Jersey, a post later held by Gov. Chris Christie. And one of his early bosses as a young prosecutor was Maryanne Trump Barry, Donald J. Trump’s sister, who is now a federal appeals court judge.
“She’s a very good friend,” he said. “Whether she’s like her brother or not, I won’t get into.”