Senator Lee Discusses Supreme Court Vacancy on Senate Floor [UPH Wire]

Wednesday, February 24, 2016
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*Senator Lee Discusses Supreme Court Vacancy on Senate Floor*

WASHINGTON—Today, 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

*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. *

*Communications Director*
Conn Carroll

*Press Secretary*
Emily Long

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