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Why We Shouldn’t Select A New Supreme Court Judge Now


NC Family president John Rustin talks with Casey Mattox, Senior Counsel at Alliance Defending Freedom (ADF), about why the United States Senate should wait until after the 2016 Presidential election to hold hearings to find a replacement for Supreme Court Justice Antonin Scalia who passed away in February.

Casey Mattox

“Family Policy Matters”
Transcript: Why We Should Not Select A New Supreme Court Judge Now

INTRODUCTION: Casey Mattox is Senior Counsel with Alliance Defending Freedom. At ADF, Casey plays a pivotal role on the Life Team, where he has been active in defending the sanctity of human life and holding the abortion industry accountable for its fraudulent use of taxpayer dollars. Casey is also active in defending the conscience rights of healthcare workers.

Casey is going to be talking with us about why the United States Senate should wait until after the 2016 Presidential election to hold hearings to find a replacement for Supreme Court Justice Antonin Scalia who passed away in February.

JOHN RUSTIN: Following Justice Scalia’s untimely and tragic death in February, President Obama wasted no time in putting forth his choice for a nominee to fill that now-vacant seat on the U.S. Supreme Court. Before we talk about that, if you would, explain for us how Supreme Court nominations work, and who ultimately decides who will serve on our nation’s highest court?

CASEY MATTOX: Under Article 2, Section 2 of the Constitution, the President has the power to nominate someone to serve on the Supreme Court, and the Senate has the ultimate responsibility to provide consent for that nominee to serve on the Supreme Court. They provide what’s termed “advice and consent.” And so it’s really a shared responsibility between the President and the Senate, and so particularly with respect to the Senate, that’s where the American people get to provide their input. Of course, we’ve had a Senate election recently, and it’s their responsibility to decide if that nominee, or any nominee, will sit on the court.

JOHN RUSTIN: ADF and other legal experts have argued that the U.S. Senate should not hold hearings on Justice Scalia’s replacement until after the Presidential election in November. Why is waiting until after the election so important?

CASEY MATTOX: I think one thing that everybody can agree on is that this is a very unique election season we’re going through, and the American people are demanding to be heard right now, and it’s very important that we not have what would likely be a very contentious nomination process, hearing process, for any Supreme Court nominee, right now in the middle of an election season like this. I think the better course of action is to wait until this process plays itself out. This is a terribly consequential decision. Justice Scalia was the pivotal vote on a number of five to four issues, you know, from key religious liberty cases, partial-birth abortion, Second Amendment rights, and many others that he was the key vote on. And so the American people now have an opportunity to weigh in on the scope of the Supreme Court, and what they want to see the future of that Court be.

JOHN RUSTIN: As some of our listeners may not recognize, appointments to the United States Supreme Court are essentially for life, or until one of the members chooses to resign for whatever reason. So it’s not just a limited, finite amount of time that they serve, but they can serve for many years, and so it is a critically important process for those nominations to be made and scrutinized by the United States Senate before those placements are made.

CASEY MATTOX: That’s exactly right. The Supreme Court is nine individuals that have an increasing amount of power over our lives, not only key questions like over religious liberty that really impact people on a day to day basis that the Supreme Court gets to decide. But there’s been a change in the Court over the last several decades, where they’ve taken more and more of that power on. At the same time, as you’ve said, an appointment to the United Supreme Court is for life. You’re there for as long as you want to remain on the Court. And so it’s very important that we, the American people, have a voice in who that person is going to be, and I think this election gives us that opportunity to have a very long, overdue discussion about the Supreme Court, and it’s role in our lives, and how we would like to see the Court go into the future.

JOHN RUSTIN: Casey, one of the points ADF has made about the Senate confirmation hearings is that the Senate really has no duty to act on the President’s nominations. Explain that for us.

CASEY MATTOX: Certainly. Well, the President actually has no responsibility constitutionally to even nominate anyone, and the Senate certainly has no responsibility to do anything with the nomination once it’s made. The Senate has the responsibility, according to the Constitution, to provide advice, and if it chooses to, consent on a Supreme Court nominee. But how it does that, whether it does that, is completely up to the Senate to make that call. So in many previous years, you’ve had the Supreme Court with only eight justices, or even fewer, for large portions of time, they’re able to continue to do their business, they’re able to still decide cases, hear cases and decide them. So it’s not as if this is a shutdown. The United States Supreme Court continues to serve, and continues to do its work. Current justices of the Court on both sides of what people usually think of as the ideological divide on the Court have said that they’re perfectly able to continue to do their work, so there’s really no rush. Waiting until the next President gives us the opportunity for the American people to speak into this process.

JOHN RUSTIN: We’ve heard some discussions that suggest that this is kind of an unprecedented move that the Senate would wait, or stall, or not immediately take action on the President’s nomination. What is the history of the United States Senate with respect to acting on Presidential nominations for a seat on the Supreme Court during an election year?

CASEY MATTOX: It’s really the opposite—there’s very little if any precedent for the Senate actually filling a vacancy that’s created during an election year, probably for very good reason because the same sorts of concerns that are animating many folks today. So, for example, to 1932 I believe was the last time that anyone was confirmed in an election year and so you have to go all the way back to then, that’s before we actually had FM radio! The last time you actually had any nominee that was confirmed during an election year by the President and the Senate were opposite parties, the last time that happened Yale was the dominant power in college football, in 1888. So, it has been quite a long time that was the world we were in the last time that an opposition party Senate was actually asked to consent to a new Supreme Court nominee to fill a seat that was vacated during a presidential election year. The normal process is to simply wait these things out, allow it to carry over. And in then the early years of the Republic, you had several examples of that where you had a vacancy created just in the first few decades after the Constitution you had a vacancy created and the Senate said let’s wait until we have the new Senate convene, the new President will be able to make a choice, and then we can go from there.

JOHN RUSTIN: You touched on this already, but what about those who argue that the Supreme Court cannot function properly, or well with only eight justices. That if there are eight justices that they could result in split-decisions, and just a leave some of these major cases that are pending before the Court in limbo, so to speak. Talk about that for a minute.

CASEY MATTOX: Sure, well I think the first point is for people to understand is that the Supreme Court hears a relatively small number of cases. They often are consequential cases, but the Supreme Court hears very few of them overall. I think they get asked to hear about eight or nine thousand cases a year, they hear about 85 to 90 cases a year. So, first of all that’s the Supreme Court’s caseload. Even since Justice Scalia passed away the Supreme Court has been issuing decisions, it’s been making orders and issuing decisions, and it’s perfectly capable of doing that going forward. And in those rare instances where the court splits four to four, then all that means is whatever the lower court decided continues to stand. And so that’s by no means a terrible scenario for a lower court who has already heard the case, has already made a determination, that decision just continues to stand. And the other thing that the court can continue to do, if they want to hold a case over because they think that maybe the new ninth justice will make the difference, they’re perfectly capable of doing that. That’s one of the benefits of being a Supreme Court with lifetime appointment power is that you could really do whatever you want to do. If you want to wait an hear the case later, you can. As a matter of fact in Roe v. Wade, that’s how Roe was decided. Roe was held over from one sitting to the next sitting. They actually argued Roe v. Wade twice. So there’s no reason why the Supreme Court can’t continue to do the same thing. If they have a case that they think needs to be heard by a ninth justice, they can simply wait for a ninth justice, and it’s not the end of the world. 

JOHN RUSTIN: Casey, to kind of put this into perspective, what would you consider to be some of the most important cases that are currently pending before the Supreme Court that they could either make decisions on with eight members, or possibly wait and decide when that ninth member is appointed?

CASEY MATTOX: Just a few of them off the top of my head, you have a case dealing with Texas’ abortion regulations. That case is currently pending before the Court and is one that the Court could either go ahead and decide, either five to three or four to four, or could hold that case again until the fall, and as I mentioned would be a nice parallel with Roe v. Wade, which was held over in exactly the same way, if they decide to wait on that case. And of course you have the Zubik case, the cases of Christian Colleges and Universities as well as Little Sisters of the Poor that will be heard at the Supreme Court dealing with the Obamacare abortion pill mandate. And so that’s yet another case that may divide the Court, and if it does we’ll see if the Court decides the case five to three or four to four, or if it decides it wants to wait on the outcome of the case.

JOHN RUSTIN: At this point how has the Senate responded to the President’s nomination of a replacement for Justice Scalia, and do you think there is there any chance that the Senate will hold hearings before a new president is elected? 

CASEY MATTOX: The Senate has been very clear from the outset that they will not hold hearings or any vote on this nominee, and I expect that will actually hold. I know that it will probably surprise some people to put that much stock and faith in the United States Senate, but from the meetings I’ve been in, from hearing people talk about this on Capital Hill, the Senate seems to have really understood what’s at stake with this choice, and I think they’re ready to stand resolute on this and make sure that they hold out and wait for the next President to make their decision. I think that’s ultimately in the interest of all Americans, right? If you want to have the Supreme Court not be a political body, but actually be an effective check on the power of the Presidency and the power of Congress, if you want it to actually be that way, then the last thing you want is a hyper-politicized hearing in which you have Presidential candidates grandstanding on Supreme Court nominations for television. And that’s ultimately what would happen; it would become a sideshow. That’s not how this should be; this is a lifetime decision that should not be made in the middle of electoral politics. It ought to be made when cooler heads can prevail, and we can sit back and see what is the direction the American people would like to see this Court move.

JOHN RUSTIN: I think that just emphasizes the importance of this election, not only the election for President, but the election for our members of the US Senate, and other races down the ballot, but particularly those two top-ballot races, because of the gravity of this position, and possibly a couple of other positions that may come available on the Supreme Court.

Casey, we are unfortunately just about out of time for this week. I do want to give you an opportunity before we end our conversation to let our listeners know where they can go to learn more about your work and about Alliance Defending Freedom.

CASEY MATTOX: Sure, and let me say first of all, thank you for all the work that you all do. It is a blessing for us to be able to work with some great family policy councils, and yours is certainly right there among the best, and so we are very appreciative for all the great work that you all do in North Carolina, and we’re just happy to be able to partner with you on it whenever we can.

You can go to the ADF website is, and you can find out about the kinds of work we’re involved in, both at the Supreme Court and in the states, and around the country.

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