By HOPPY KERCHEVAL

CHARLESTON -- For all the talk about courts overstepping their bounds and legislating, West Virginia Supreme Court Justices are sounding like the last thing they want to do is get into the law making business these days.

Tuesday, the high court heard arguments for two hours on the politically hot issue of gubernatorial succession. Senate President Earl Ray Tomblin believes he should be able to serve as Acting Governor until the 2012 General Election, but several groups and House Speaker Rick Thompson believe an election to choose a successor to former Governor Manchin should be held this year.

At the hearing Tuesday, every time those arguing for a prompt, new election made their pitch to the court, the justices threw up a fence of caution.

"Aren't we acting as the Legislature and making the law?" asked Justice Menis Ketchum.

"The issue is how far does this court go," said Justice Tom McHugh.

"If this is so important, why shouldn't the Legislature do it," said Justice Brent Benjamin. "How do we order the Legislature to legislate?"

Justice Margaret Workman wondered if the court was being asked to act as a kind of "Super Legislature."

It was evident from many of the questions that while the justices have concerns about the constitutionality of waiting until 2012 to have a gubernatorial election, they are reluctant to try to force the state to have an election.

It's a reasonable concern. Given the separation of powers, can or should one branch of government tell another one what to do?

But the issue may not be that simple. What if the Supreme Court interprets state law and the Constitution to mean there should be a new election before 2012? Does the court still sit on its hands because it doesn't want to tamper with legislative and executive authority?

The justices will take several weeks to make their decision.

In the meantime, the political climate under the Capitol Dome is unsettled.

Jeff Kessler became Acting Senate President on Wednesday. Now, everyone is wondering whether ousted Senate Majority Leader Truman Chafin will put up a fuss or mount some parliamentary or legal challenge. Chafin believes there are myriad constitutional problems with Kessler's new position and he's furious about the way it was done.

The dust up and pending leadership change in the Senate has bruised egos, hurt feelings, angered some, as well as forced some hurried moves of Senate offices (no small matter in the parochial environs of the Capitol).

Kessler already had moved into the Senate President's office and he, like Tomblin, is quickly dropping the word "acting" before his title.

So as the General Session of the Legislature gets under way, it's with an unusual amount of tension and drama.

Kercheval is host of TalkLine, broadcast by the MetroNews Statewide Radio Network from 10 a.m. to noon Monday through Friday.

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