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Washington-When preparing to write a supporting brief in a key disability-federalism challenge in the new Supreme Court term, disability scholar Peter Blanck and his colleagues, like so many lawyers before them, decided to write with an eye toward the middle of the court. “Of course when Justice [Sandra Day] O’Connor announced her resignation, it certainly affected our thinking on how we would position the issues,” said Blanck, university professor and chairman of the Burton Blatt Institute of Syracuse University. “At the end of the day, I’m not sure it influenced our decision in a dramatic way, but it certainly affected our thinking. She is the swing vote here.” Welcome to the new reality of Supreme Court litigation-a court without Sandra Day O’Connor. O’Connor will be on the bench this week, the first week of the new term, but for how much longer, no one knows. She agreed to postpone her departure until her successor is confirmed. President Bush is expected to announce a nominee imminently. But the confirmation process-from nomination to final vote-generally has taken at least two months. “For all we know, she could serve the entire term,” said former acting Solicitor General Walter Dellinger of O’Melveny & Myers. He noted that Chief Justice Earl Warren ended up doing just that after announcing his retirement in June 1968. President Johnson’s choice as Warren’s successor-Justice Abe Fortas-ran into controversy and his nomination was withdrawn. Warren swore into office his successor-Warren Burger-a full term later. There are at least seven cases on the argument docket this term in which O’Connor is the likely critical fifth vote and, based on prior terms, that number easily could double if O’Connor stayed until June. If her successor is not confirmed by their argument dates and O’Connor is the decisive vote, the court may decide to hold reargument in the next term-a headache for litigators and a reminder of the high stakes in the O’Connor vacancy.
The O’Connor Factor In at least seven cases on the argument docket this term, Justice Sandra Day O’Connor is the likely critical fifth vote:

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