With the death of Justice Antonin Scalia, the U.S. Supreme Court is down to eight justices, and a debate rages over whether President Barack Obama should nominate a successor or defer selection to the next president.

Most of that debate is political rather than judicial. There are a lot of moving parts to filling a vacancy on the Supreme Court. The president must make a nomination, and the Senate, currently controlled by the opposition party, must hold hearings and confirm or reject that nominee.

Some commentators and politicians have suggested there is a “tradition” of holding Supreme Court vacancies open in presidential election years. However, a favorite blog of Supreme Court watchers (scotusblog.com) examined the last year of every presidential administration from the 20th century forward and found no instance of the two major parties deliberately leaving a vacancy open until the new administration took over. To the contrary, there is a fairly consistent track record of outgoing presidents making nominations and the Senate bringing those nominations to a vote.

One arguable exception was Abe Fortas, nominated to succeed Chief Justice Earl Warren in 1968 and blocked by bipartisan filibuster; however, Chief Justice Warren remained in office during the process, so the court was never shorthanded.

Every term, the Supreme Court decides a handful of cases with significant political implications. Those cases tend to be the primary focus of the public and officials in other branches of government. However, the court decides approximately 80 fully briefed cases each term. Many of those deal with less “interesting” issues for the public at large, but they can be hugely important for those of us toiling at the trial court level.

Right now a case pending at the Supreme Court involves a constitutional challenge to Minnesota’s alcohol test refusal law, potentially affecting a significant number of DWI prosecutions in the state. In Duluth, we already are putting dozens of cases in a holding pattern, waiting for the high court to make its decision. Depending on how long it takes to fill Justice Scalia’s vacancy, and whether the court opts to issue a decision with eight justices, thousands of cases could remain in that holding pattern.

When the court has an even number of justices, the possibility of a tie vote is very real. That results in lower court rulings remaining in place. Because lower courts’ decisions are not binding on other jurisdictions, important questions of constitutional law essentially can go unanswered for much of the country. That uncertainty does not advance the cause of justice.

Changes in presidential administrations always have a ripple effect on the other branches of government. The composition of the Senate also could change this fall.

But in the meantime, the work of the judicial branch needs to continue. I sincerely hope the other branches of government can, at least to some extent, put partisanship aside and get the Supreme Court back up to full strength as soon as possible. Even Justice Scalia would not dissent on that point.

Dale Harris is a 6th Judicial District judge in the St. Louis County Courthouse in Duluth.