Senator Lee Discusses Supreme Court Vacancy on Senate Floor

Senator Mike Lee (R-UT) delivered remarks on the Senate floor in honor of the late Supreme Court Justice Antonin Scalia, and addressed the matter of the vacancy in the Supreme Court.

Below are Senator Lee’s remarks as prepared for delivery, and a video is available here.

Mr. President, Supreme Court Justice Antonin Scalia was an extraordinary man whose contributions to this country and its people – whom he faithfully served from the bench – are so prodigious that it will take generations for us to fully comprehend our debt to him. His untimely death is a tragedy, and his legacy a blessing to friends of freedom everywhere.  

Justice Scalia was a learned student of history and a man who relished a spirited debate. So it is fitting that his passing has sparked a conversation in America about the constitutional powers governing the appointment of Supreme Court justices and the historical record of Court vacancies opening in a presidential election year.

This debate gives the American people and their elected representatives a unique opportunity to discuss our nation’s founding charter and history at a time when our collective choices have real consequences. So it’s important that this debate proceed with candor, mutual respect, and deference to the facts.

In that spirit, I’d like to address – and correct – a few of the most pernicious errors, inaccuracies, fallacies, and fabrications that we have heard from some of the loudest voices in this debate.  

From the outset, I have maintained that the Senate should withhold its consent of a Supreme Court nomination to fill Justice Scalia’s seat and wait to hold any hearings on a Supreme Court nominee until the next president is sworn in. This position is shared by all of my Republican colleagues on the Judiciary Committee, consistent with the Senate’s powers in the appointment of federal judges, and supported by historical precedent.

In response, some of my colleagues on the other side of the aisle and many in the media have resorted to all manner of counterarguments, ranging from the historically and constitutionally inaccurate to the absurd. And in many cases, the claims made by my Democratic colleagues today flatly contradict their own statements from the past.

I believe the plain meaning of the Constitution and the historical record are sufficiently clear to stand on their own as evidence that there is absolutely nothing unprecedented or improper about the Senate choosing to withhold its consent of a president’s nominee to the Supreme Court.

So I’d like to focus on one particular allegation offered by some of my colleagues on the other side of the aisle.

With the letter and spirit of the Constitution, as well as their own words, standing against them, many have turned to fear-mongering in a last-ditch effort to win the debate. They claim that leaving Justice Scalia’s seat vacant until the next president nominates a replacement would inflict profound institutional damage to the Supreme Court by: disrupting the resolution of this term’s cases—a term including important cases on abortion, immigration, religious liberty, and mandatory union dues, among others; ensnaring the Court in endless gridlock with an evenly split eight justices on the bench; and leaving it short-staffed for an unprecedented and prolonged period.

Here, the doomsayers are on very weak ground, indeed.

Let’s look at each of these claims in turn.

First, is it true – as many have claimed – that the business of the Supreme Court will be obstructed or otherwise disrupted if the Senate withholds its consent of President Obama’s nominee? Absolutely not.

In recent history – in fact, since the nomination of Justice Scalia to the Supreme Court in 1986 – it has taken more than 70 days on average for the Senate to confirm or reject a nominee after that nominee has been submitted by the president to the Senate for its advice and consent.

And in many cases, it has taken far longer for the Senate to grant or withhold its consent. It took this body 108 days to reject Judge Robert Bork and 99 days to confirm Justice Clarence Thomas.

Presuming the modern historic average would hold true for any future nominee, even if President Obama were to announce and refer a nominee to the Senate today for our advice and consent, the process would carry through until at least early May.

But the Supreme Court stops hearing cases in April – which means that, even if President Obama were to announce a nominee today, and even if the Senate were to confirm that nominee in a period of time consistent with historical standards, that individual would not be seated in time to hear and rule upon any of the cases currently on the Court’s docket.

In other words, it would be historically anomalous for any of the cases currently pending before the Court to be decided this term by a nine-member Supreme Court, no matter what the Senate chooses to do regarding any future nominee.

Let’s put this in perspective: in this scenario – a scenario endorsed by Senate Democrats – it is highly unlikely that the nominee to fill Justice Scalia’s seat would hear oral arguments until the beginning of October, literally just a few weeks before the presidential election.

This proves that the main argument made by President Obama and his allies is based on a myth. In their telling, the Senate’s choice to withhold consent of a nominee would deny President Obama a Supreme Court justice who will have a major impact on the Court during his final year in the White House.

But in reality, it is unlikely that the president’s nominee will join the Supreme Court until the country is just weeks away from choosing President Obama’s replacement. I think most Americans recognize the problem of a president having the ability to reshape the Supreme Court in his image on his way out of office. And that is why the Senate is choosing to withhold its consent in this case.

This is the right course not because of anything the Senate does or does not do, and not because of anything the president does or does not do. It is simply a function of the unfortunate timing of Justice Scalia’s death. Claims to the contrary are flatly contradicted by an empirical analysis of the Court’s history.

Second, the Senate’s decision to withhold consent will not lead to an intractable impasse or hopeless gridlock – even if the eventual appointee were to miss the entirety of next term, which starts in October 2016 and runs through the end of June 2017.

In each of its previous five terms, the current Court has decided only 16 cases on average, or 23 percent of its case load, by a 5-to-4 majority. And Justice Scalia was one of the five justices in the majority of those 5-to-4 cases only about half of the time on average. This means that the vacancy left by Justice Scalia would result in about eight cases out of dozens being decided by a 4-4 split.

In fact, in the last term served by Justice Scalia, he was in the majority in only six such cases. And in the preceding term, Justice Scalia’s second-to-last, he was in the majority in only five cases decided by a 5-to-4 majority.

Thus, it is likely that the effect of his absence on the final vote and ultimate disposition of cases will be lower than even the average suggests: instead of eight cases being decided by a 4-4 split in Justice Scalia’s absence, it is likely to be closer to five or six. 

And let’s not forget what should be obvious: the sky does not fall when a 4-4 split occurs. Rather, the decision of the lower court is left standing. And if there is the prospect of a 4-4 split on a particularly salient matter, the Court always has the option of scheduling (or rescheduling) the hearing for a later time when the Court will have all nine justices presiding.

Finally, Mr. President, a vacancy on the Court lasting through the presidential election season will have no greater effect on the Court’s ability to decide cases than any number of instances in the past where the Court has had to decide matters with eight or fewer justices.

As recently as the Court’s 2010-2011 term, the Court had to decide over 30 cases with eight or fewer justices, almost entirely as a result of recusals arising from Justice Kagan’s nomination.

Likewise, following the retirement of Justice Powell in 1987, the Court had to act on 80 cases with eight or fewer justices. This was a result of Democratic opposition to Judge Bork and the eventual late-February confirmation of Anthony Kennedy, coupled with dozens of recusals by Kennedy and other justices later in that term.

And in the October Term of 1945 the Court functioned as an eight-member body while Justice Robert Jackson was serving as a prosecutor in Nuremberg, acting on a full term’s case load without him.

Tellingly, when Justice Jackson expressed concern about missing so many cases and considered returning early, Justice Frankfurter wrote to encourage him to stay on as prosecutor, stating that his absence was not “sacrificing a single interest of importance.”

Compared to today, the Court had a larger workload and issued many more opinions during that term in which Justice Jackson was absent. This suggests that a vacancy of a similar duration as Jackson’s full-term sabbatical would be even less damaging to the Court’s functioning than the absence of Justice Jackson – an absence that, to reiterate, did not sacrifice “a single interest of importance.” 

The next president’s future nominee is unlikely to miss as many cases as Justices Kennedy or Jackson missed.

These are the facts, Mr. President.

They can’t be ignored or wished away. If we’re going to have a serious, honest debate about the vacancy left by Justice Scalia’s tragic passing, we must proceed on the basis of these facts.

I yield the floor.