Justice Samuel Alito said Tuesday that the Supreme Court will cope with only eight justices after the death of Antonin Scalia.
“We will deal with it,” Alito told an audience at Georgetown Law, pointing out that there is nothing in the Constitution that specifies the size of the court.
He said the death of Scalia came as a “great shock to us” and said the court was just starting to get back to business after its winter recess. “We will see what develops,” he said.
Asked specifically for his opinion on what kind of candidate should be sought as a replacement, Alito demurred.
“We don’t choose our colleagues. The presidents choose the justices and the judges and the Senate confirms them,” Alito said, adding, “I have enough trouble with the questions that I have to decide.”
In a wide-ranging talk with the school’s Law Dean William M. Treanor, Alito discussed the process for his own confirmation. He noted that he had the “advantage” of being a circuit judge and said that was helpful to him as the process unfurled.
“Given the way the confirmation process — the interviews of senators that occur immediately upon the announcement of the nomination — I think it would be 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, or at least to have thought about how you interpret the Constitution, how do you interpret the statutes, what do you think about precedents — issues like that,” Alito said.
“You will be hit with all of that immediately once the nomination has been announced,” he added.
Alito foreshadowed what might occur with the next nominee when he said that before his name was made public, he traveled to Washington in secret.
“We came down here, we checked into the hotel under an assumed name arranged by the White House,” he said.
And when he was asked how one gets ready for the Supreme Court, Alito joked, “Once you are confirmed, it’s too late.”