Justice Scalia Explains Why Leaving His Seat Vacant Is A Terrible Idea

CREDIT: AP Photo/Manuel Balce Ceneta

Today, Republican members of the Senate Judiciary Committee agreed that they will not only oppose any nominee Obama makes for the Supreme Court but will not even hold a hearing.

If the Senators stick to this position, which would be unprecedented, it will leave Scalia’s seat vacant — and the Supreme Court with just eight Justices — for at least a year and possibly longer.

One person who would not like this idea at all: Antonin Scalia.

In 2004, the Supreme Court heard a case from the Sierra Club challenging the secrecy of the Bush administration’s Energy Task Force, which was chaired by Vice President Dick Cheney.

The Sierra Club petitioned Scalia to recuse himself, citing his personal relationship with Cheney. They had, famously, gone duck-hunting together.

Scalia rejected the request and, in so doing, explained the adverse impact of that losing a justice has on the court. Here is the key passage from Scalia’s memo, noted by a former law clerk for Scalia, Ian Samuel:

On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case. Thus, as Justices stated in their 1993 Statement of Recusal Policy: “[W]e do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution, whenever a relative is a partner in the firm before us or acted as a lawyer at an earlier stage. Even one unnecessary recusal impairs the functioning of the Court.” (Available in Clerk of Court’s case file.) Moreover, granting the motion is (insofar as the outcome of the particular case is concerned) effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.

Here, the Republican Senate is essentially creating an eight person court for an entire year or longer, something that would create the problem Scalia warned about in every single case heard by the Court until his replacement is confirmed.

More broadly, Republican Senators are intent on turning the 2016 presidential election into a referendum on the Supreme Court. Scalia also spoke out against the politicization of the appointments process.

“I am not happy about the intrusion of politics into the judicial appointment process,” Scalia said in 2010.