Justice Wainwright’s recent departure from the Texas Supreme Court has raised an interesting question. As presented to me by a colleague, it goes like this:
Without Justice Wainwright, what happens if the Court is split 4-4? Do they just have to fight over it until someone gives in to reach a majority?
My initial thought was that the Governor could commission a replacement justice under Texas Government Code § 22.005. From reading the statute, however, it is plainly limited to situations in which a justice has voluntarily recused or has been disqualified by law. Resignation doesn’t count.
To answer my colleague’s question, the Court would most likely hold the case until the Governor appoints someone to fill Justice Wainwright’s unexpired term, which ends in 2014. The new appointee would then cast the deciding vote.
I don’t think anyone should be concerned about the prospect of a 4-4 split causing undue delay in a pending case. The Governor might wait until after the general election to name the appointee, but that’s only four weeks away, and the required senate confirmation has not held things up historically. I would be surprised if we don’t have a full complement of justices in place by early January.