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A deep bench of substitute justices goes unused

The Senate Judiciary Committee continues confirmation hearings for Kagan, who pledged in prepared remarks to support judicial restraint and a "modest" role for the high court.

"There are now three retired justices who can sit on any federal court, except the court to which they were confirmed," Leahy said. "If there is a way for retired justices to help the court fulfill its role in our democracy, I think we should consider it. Justice Stevens is absolutely right about this."

When the court splits evenly on a case, the decision of the lower court stands, but without greater precedential value.

Any discussion of Congress telling the court how to conduct its business raises separation-of-powers questions. Any legislation would likely be enabling rather than mandatory, simply allowing the court to use retired justices if it chooses and setting up some sort of selection mechanism.

That is complicated as well. If a lower court wants a retired justice to sit in on a case, it asks the chief justice to make the assignment. But at the high court, allowing the chief justice to choose from the retired justices could, in effect, be giving him two votes. An alternative would be to allow the justices to vote on the replacement. But should the recused justice have a say? Should there be a rotation?

And, at some point, theory steps aside and reality sets in. "It's an interesting idea," said James Sample, a Hofstra law professor who has specialized in studying judicial recusals. "The challenge is that it's so difficult to divorce discussion of the proposal from the individual justices who might end up replacing the recused justices."

In other words, the bench currently consists of Stevens, O'Connor and retired justice David H. Souter, all of whom are to the left of the court's dominant conservatives.

It is as unlikely to think Republicans would think it is a good idea to put them back in the lineup, Sample said, as it is to think Leahy would be as keen on the idea if the available replacements were, say, former chief justices William H. Rehnquist or Warren E. Burger.

One solution, Sample suggested, would be to come up with a plan but delay implementing it for a number of years. By then, the replacement pool would likely be different.

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