February 28, 2016

GOOD: McConnell, Grassley Will Tell Obama: No Action on Court Nominee In 2016.

Senate Majority Leader Mitch McConnell, R-Ky., and Judiciary Chairman Charles E. Grassley, R-Iowa, will meet with President Barack Obama next week on the Supreme Court vacancy, and they will relay their position that the next president should fill the vacancy.

“We look forward to reiterating to him directly that the American people will be heard and the next Supreme Court justice will be determined once the elections are complete and the next president has been sworn into office,” the pair said in a joint statement. “And we welcome the opportunity to further discuss matters of mutual interest, like the drug epidemic that’s tearing communities apart across our country.”

Earlier on Thursday, Grassley said he was willing to listen to the president. “I think when the president wants a meeting, I’ll give him the opportunity to make the first statement, find out what he wants to know,” Grassley told Roll Call in the Senate basement. “But I think that it’s pretty clear that we will tell the president — we’ve said that the people should decide. It’s not about one individual.”

The White House confirmed Obama will meet Tuesday with Senate leaders and the top Republican and Democratic members of the Senate Judiciary Committee on the court vacancy created by the death of Justice Antonin Scalia this month.

Related: Only Eight Justices? So What? A Supreme Court vacancy doesn’t make the justice system grind to a halt. History shows that it merely delays rulings in a small number of cases.

Justice Antonin Scalia’s death leaves the Supreme Court in a tough spot, but it is one for which the institution is prepared. Due to death, retirement or resignation—or recusal in individual cases—the high court has often been short-handed. Since World War II there have been 15 periods when the court had eight justices, and each time the court managed its docket without a hitch.

Even in the rare cases when eight justices split evenly, 25 times the court affirmed the lower-court judgment without opinion (or precedential value) and 54 times the court set the case for reargument. The former approach allowed the issues to be raised again in similar future cases. The latter allowed for proper resolutions once the ninth justice joined—and only 25 of those cases ended up 5-4, meaning the new justice made no difference in over half of the reargued cases.

In other words, rather than making the judicial system grind to a halt, a Supreme Court vacancy merely delays rulings in a small number of cases. A study of the past 60 years of eight-justice rosters reveals that today’s Roberts court can easily handle the current vacancy, however long it lasts.

So no hurry.

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