Filling the Supreme Court Vacancy

Floor Speech

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

Justice Scalia was a learned student of history and a man who relished, perhaps more than any other, a spirited, lively debate, so it is fitting that his passing has sparked a conversation in America, a spirited conversation about the constitutional powers governing the appointment of Supreme Court Justices and the historical record of Supreme Court vacancies that happen to open up during a Presidential election year.

This debate gives the American people and their elected representatives in the Senate a unique opportunity to discuss our Nation's founding charter and history at a time when our collective choices have very real consequences, so it is important that this debate proceed with candor, mutual respect, and deference to the facts. In that spirit, I wish to address and correct a few of the most pernicious errors, inaccuracies, fallacies, and fabrications we have heard from some of the loudest voices in this debate over the last few days.

From the outset, I have maintained that the Senate should withhold its consent of a Supreme Court nomination to fulfill Justice Scalia's seat and wait to hold any hearings on a Supreme Court nominee until the next President, whether it is a Republican or a Democrat, is elected and sworn in. This position is shared by all of my Republican colleagues on the Senate 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 some of my 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 and absolutely nothing improper about the Senate choosing to withhold its consent of a President's nominee to the Supreme Court, so I would like to focus on one particular allegation offered by some of my colleagues on the other side of the aisle.

With the letter and the spirit of the Constitution, as well as their own words standing against them, many have turned to fearmongering 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 somehow inflict a profound institutional injury on the Supreme Court by disrupting the resolution of this term's cases before the Court, 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 potentially prolonged period. Here, the doomsayers are on 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 formally submitted by the President to the Senate for its advice and consent--more than 70 days on average. 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, significantly, the Supreme Court stops hearing cases in April, which means that even if President Obama were to announce a nominee today, right now, 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 that are currently on the Court's docket or any of the cases that are before the Court in this term. 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 serve 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 exactly 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 the next term, which starts in October of 2016 and runs until the end of June 2017.

In each of its previous 5 terms, the current Court has decided only 16 cases on average--or 23 percent of its caseload--by a 5-to-4 majority, and Justice Scalia was 1 of the 5 Justices in the majority in those 5-to-4 cases only about half of the time on average. That means that the vacancy left by Justice Scalia would result in about eight cases out of dozens being decided by a 4-to-4 split. In fact, in the last term served by Justice Scalia, the last complete term, he was in the majority in only six of those 5-to-4 cases, and in the year before that, the preceding term, Justice Scalia's second to last term, he was in the majority in only five of the cases decided by a 5-to-4 majority. What does this mean? Well, it means that 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-to-4 split in Justice Scalia's absence, it is likely to be closer to five or six, as it has been in the last two full terms of Justice Scalia's service on the Court.

Let's not forget what should be obvious: The sky does not fall when a 4-to-4 split occurs on the Supreme Court; rather, the decision of the lower court is left standing. And if there is the prospect of a 4-to-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 and hearing the case.

Finally, 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 Justices or even fewer.

As recently as the Court's 2010-to-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 8 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.

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 caseload without him. Tellingly, when Justice Jackson expressed concern about missing so many cases and actually considered returning early for that reason, Justice Felix Frankfurter wrote to encourage Justice Jackson to stay on as a 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 nor can they be wished away. If we are 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.

Thank you, Mr. President.

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