Imagine the Supreme Court deciding more than 100 cases without its full complement of nine Justices. Imagine this closely divided Court splitting 4-4 in many of those cases, meaning that it cannot issue a decision that provides binding law for the whole country. And imagine that, as a result, different people in different parts of the country are subjected to different laws. This is exactly the harmful and chaotic scenario some Republican leaders are advocating in the wake of Justice Scalia's death. They should not be allowed to make that happen.
Almost as soon as news of Justice Scalia's death was released, some Republicans made clear that they would do whatever they could to prevent President Obama from naming his successor. Communications Director for Senator Mike Lee tweeted, "What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?" And both Senate Majority Leader Mitch McConnell and Judiciary Committee Chair Charles Grassley also made clear in no uncertain terms that Scalia's replacement should be named not by President Obama, but by whoever succeeds him. "The American people should have a voice in the selection of their next Supreme Court Justice," McConnell said.
They already have, of course, in the 2012 election. In addition to being plainly at odds with the Constitution, these arguments are stunning for what they reveal about these Republicans' contempt for the Supreme Court as an institution and for the rule of law. If these obstructionists were to have their way, the Supreme Court would be without a full complement of justices not only for the remainder of this Term, but also for much of the next Term. After all, if President Obama's political opponents block any nominee he puts forward regardless of qualifications in order to hold the seat open for the next President, that President's nomination cannot even be made until (at the very earliest) the afternoon of January 20, 2017, the day the new President is inaugurated. The average time between nomination and confirmation for the last four Justices was 75 days. Thus, even assuming an immediate nomination by the new President, and even assuming that the Senate acts on that nomination in a timely fashion, the new Justice would likely not be confirmed until early April 2017, the last month in which the Court regularly hears oral argument. This means that the new Justice would be able to participate in oral argument only for the final sitting of the Supreme Court's October 2016 Term. As a result, the new Justice would likely only participate in roughly 12 cases out of the 70-80 that the Court would presumably be hearing next term.
It's worth pausing for a moment to consider what all of this promised obstruction means. First, it means the Court would be without all nine members when it decides all of the remaining cases for this Term. According to SCOTUSblog, there are 34 cases in which the Court has already heard oral argument, but not yet issued a decision. Add to that the roughly two dozen additional cases in which the Court has yet to hear oral argument, and it's clear that more than 60 cases this Term will be decided by an eight-member Court. Second, add to that the roughly 60 cases from next Term that would also be heard before a new Justice is confirmed, and there will be roughly 120 cases decided without a full complement of nine Justices.
The consequences of the Supreme Court being without all nine justices for so long can hardly be overstated. Most significant, a long-standing vacancy would compromise the Court's ability to perform one of its most important functions, that is, establishing a uniform rule of law for the entire country. In the rule governing how the Supreme Court decides which cases to hear, the first two (of three) considerations provide that the Court should review a case when there are conflicting decisions among the courts below. Justice Scalia himself once told the Senate Judiciary Committee that his colleagues on the Court are guided by these questions in deciding whether to hear a case: "Is there a circuit conflict? Is this a significant issue on which the lower courts are divided?... [I]f there's no disagreement below, we don't get involved." By hearing cases in which lower courts are divided, the Court can settle the dispute and establish one rule of law to govern the entire nation.
But there will be many cases in which the Court cannot do that when it has only eight members. There's no question that on this sharply divided Court, the potential for 4-4 decisions will be strong. When that happens, the Court cannot resolve these conflicts because it cannot establish a precedented decision. When the Court decides a case 4-4, the ruling of the court below is affirmed, but there is no binding decision of the Supreme Court that governs the rest of the nation. As a result, vital questions about our nation's laws and the Constitution will be left unanswered. Sometimes these questions may be in high profile cases touching on such issues as the environment or religion; other times they may be in cases that don't normally get much attention, but are nonetheless important (for example, cases involving whether individuals can sue in court when their rights under federal law are violated).
The practical result is simple and harmful: people will be subjected to different rules in different parts of the country. For individuals, these different rules may be unjust and confusing. For businesses, these different rules may make it exceedingly difficult to operate in multiple parts of the country. And, again, if some Republicans have their way, the Court will be unable to resolve these conflicts for at least the majority of two of its Terms. That result undermines the rule of law and is undeniably bad for the country, whatever one's ideology. It is, in short, simply unacceptable.
It bears emphasis that this important role of the Court -- and the fact that one vacancy on the Court can prevent the Court from effectively fulfilling that role -- makes clear why nominations to the Supreme Court have long been elevated above all others and handled expeditiously. When the Supreme Court has a vacancy, it simply cannot function as it is supposed to.
It is no wonder then the Senate has historically moved so swiftly to hold hearings and votes on Supreme Court nominees. Since the 1980s, every person appointed to the Court has been given a prompt hearing and vote within 100 days. During that same period, there has never been a vacancy spanning more than one Term, and never one longer than four months while the Court has been in session.
There are well over 300 days until President Obama leaves office, far longer than it has ever taken a Supreme Court nominee to receive a vote in recent history. This means there is no reason a new Justice cannot be confirmed during that time, and there is every reason why one should. If some Republican Senators choose to play politics with the Court's vacancy, the harm they will do to President Obama's forthcoming nominee won't be nearly as great as the harm they will do to the Supreme Court, to the country, and to the American people.
This piece is also crossposted at CAC's Text and History blog.