In the debate over the Supreme Court vacancy, Senate Republicans have taken a principled stand to wait until after the election to consider a nominee. In response, Democrats and their liberal allies have deployed a series of disingenuous arguments to convince Americans that the Senate is not doing its job.
In their latest attempt to deceive voters, many Democrats have suggested that the Senate’s decision will leave an unprecedented vacancy that will prevent the judicial branch from carrying out its constitutional duties. This argument would be compelling if it weren’t completely unsubstantiated and ignorant of the Supreme Court’s history.
OPINION
Those who argue the Supreme Court needs nine justices to hear a case are either ignoring the truth or deliberately distorting the facts to fit liberal talking points. Nothing in our Constitution specifies the number of justices that should serve on the Court. Rather, the Constitution gives Congress the power to determine the structure of the courts, including the number of judges. These numbers have fluctuated throughout history, according to the best judgment of Congress.
For example, at the beginning of our Republic, only six justices served on the Court. In the decades that followed, Congress passed various acts to change this number. For many years, there were only seven justices; during the Civil War, there were as many as 10. It wasn’t until Congress passed the Judiciary Act of 1869 that the number of justices was fixed at nine. The fact that the Court issued thousands of decisions over many decades with six, seven and even 10 justices on the bench undermines any suggestion that it can only function with nine members.
Just as disingenuous is the notion that an even number of justices will disrupt the proceedings of the Court by resulting in an inordinate number of split 4-4 decisions. Democrats who peddle this fiction willfully neglect the fact that the Court has consisted of an even number of justices at numerous times throughout its history, including when it was first established. They also ignore that the Court has well-established rules for dealing with tie decisions.
Consider Justice Robert Jackson’s leave of absence to serve in the Nuremberg Trials in 1945. His hiatus left the Supreme Court with only eight justices for an entire year. But, as Justice Felix Frankfurter wrote, Jackson’s absence did not “sacrific[e] a single interest of importance” because the Court could simply reschedule any cases that resulted in split decisions.
When tie votes occur today, the Court has the same ability to reargue cases at a later date or simply let the opinion of the lower court stand. But ties are so uncommon. The vast majority of the Court’s decisions are either unanimous or split along non-ideological lines. Since I was first elected to the Senate nearly four decades ago, the Court has heard more than 500 cases with only eight justices — either due to recusal or vacancy. Less than seven percent of these cases resulted in a tie.
In such extraordinary circumstances, the Court simply rescheduled cases or let the lower court opinions stand. Contrary to the progressive narrative, the judicial branch does not come to a standstill. Perhaps this is why Justice Stephen Breyer and Justice Samuel Alito — justices of very different perspectives — both recently affirmed that the Supreme Court will continue to function effectively during the current vacancy.
President Obama and his supporters also have repeatedly declared that the Senate’s decision to wait until after the election to consider a nominee could result in the longest vacancy in history — one that could stymie the work of the Supreme Court. But history again stands between liberal arguments and the truth.
The current Court vacancy is unlikely to last longer than a year. Yet throughout history, numerous vacancies have stretched for longer periods of time. The seat vacated by Justice Abe Fortas in 1969 remained empty for nearly 400 days, and numerous vacancies in the 1800s sat open for more than two years. In none of these cases was the Court unable to function.
I call on my progressive colleagues to be honest with the American people: The Senate’s determination to wait until after the election to consider a nominee will in no way impede the business of the judicial branch. If anything, this decision will uphold the integrity of the Supreme Court by keeping politics out of the confirmation process.
Orrin Hatch is a Republican senator from Utah.
RealClearPolitics
Follow the Editorial Board on Twitter: Follow @csteditorials
Send letters to letters@suntimes.com
