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September 25, 2017

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Sotomayor: US Supreme Court still feeling loss of Scalia

MINNEAPOLIS -- The U.S. Supreme Court continues to deeply feel the loss of Justice Antonin Scalia eight months after his death, and his empty seat makes it harder for the surviving eight justices to do their job of resolving some of the country's most vexing legal questions, Justice Sonia Sotomayor said Monday.

Sotomayor, who spoke at the University of Minnesota, noted that the Supreme Court was designed to have nine justices so it can break ties on difficult cases.

"We try to come to decision-making as best as we can," she said. "Where we can find a very, very narrow way of deciding a case, we use it."

Sotomayor did not directly address how filling Scalia's seat has become a divisive issue in the presidential race between Democrat Hillary Clinton and Republican Donald Trump. The GOP-controlled Senate has so far refused to act on Democratic President Barack Obama's nomination of Merrick Garland to replace the conservative Scalia, saying it should be up to the next president to pick Scalia's successor.

But those politics have complicated the internal workings of the Supreme Court, which often needs at least five votes to decide a closely contested case. A 4-4 tie means the last lower court decision stands. It also takes four votes for the high court to agree to hear a case. Sotomayor said nearly all the cases the Supreme Court takes involve disagreements between appeals courts in different federal circuits across the country.

"When we take cases it's because there's a pressing legal problem that has divided the courts below, and justice across the country is being administered in an unequal way, because courts in different parts of the country are deciding the exact same issue in a different manner," Sotomayor said.

Letting a "vexing legal question" go unresolved allows that uncertainty over the law to continue, she said. But even a split decision lets the issue get decided and the precedent will be binding across the country, she added. Having a full nine members therefore has "great value," she said.

"It's much more difficult for us to do our job if we are not what we're intended to be -- a court of nine," she said.

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