Supreme Court Justice Antonin Scalia was an extraordinary man whose contributions to this country and its people 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 about the constitutional powers governing the appointment of Supreme Court justices and the historical record of court vacancies.
This debate gives the American people a unique opportunity to discuss our nation's founding charter 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 a few of the errors that we have heard so far 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 particular, a close look at the history of court vacancies proves that there is nothing unprecedented or improper about the Senate choosing to withhold its consent of a president's nominee to the court.
Some claim that leaving Justice Scalia's seat vacant until the next president nominates a replacement would inflict profound institutional damage to the Supreme Court.
This is simply untrue.
Since the nomination of Justice Scalia in 1986, it has taken more than 70 days on average for the Senate to confirm or reject a nominee after nomination (and it has often taken even longer, including 108 days for a Democrat-controlled Senate to reject Judge Robert Bork).
Thus, even if President Obama were to nominate someone today, it is highly unlikely that his nominee would be seated in time to participate in any of the cases currently before the court because the court stops hearing cases in April and the nominee would not be confirmed before early May.
In fact, an Obama nominee nominated today would not hear a case until the beginning of the court's next October term, mere days before the presidential election. This is not the fault of President Obama or the Senate; it is simply a function of the unfortunate timing of Justice Scalia's death.
Looking past November, even if the eventual appointee were to miss the entirety of next term, which runs through the end of June 2017, the court would not be significantly affected.
In each of its previous five terms, the current court has decided only 16 cases by a 5-to-4 majority on average. And Justice Scalia was one of the five justices in the majority only about half of the time. This means that the vacancy left by Justice Scalia would result in about eight cases decided by a 4-4 split.
And let's not forget that the sky does not fall when a 4-4 split occurs. Rather, either the decision of the lower court is left standing, or the court can reschedule the case for re-argument at a later date.
More to the point, the court has regularly functioned just fine with just eight 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. 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.
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."
These are the facts.
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 acknowledge this reality.
Sen. Mike Lee has represented Utah in the U.S. Senate since 2011.