High Court Notes Scalia's Absence; Senate Talks Replacement

The Supreme Court restarted its work Monday without the late Justice Antonin Scalia, while Senate leaders returned to the floor with dueling quotes to resume a debate about the chamber's obligation to consider a replacement for Scalia before the presidential election in November.

Chief Justice John G. Roberts Jr., with Scalia’s chair draped in black at his right, made a brief statement from the bench Monday about the conservative justice who had spent nearly 30 years on the court. Scalia's body was found at a resort in Texas on Feb. 13.

“He authored 282 majority opinions for the court. He was also known, on occasion, to dissent,” Roberts said, the understatement about Scalia’s scathing dissents drawing a laugh from the gallery. “We remember his incisive intellect, his agile wit, and his captivating prose. But we cannot forget his irrepressible spirit. He was our man for all seasons, and we shall miss him beyond measure.”

Five hours later, the Senate reconvened after a week-long recess with Majority Leader Mitch McConnell, R-Ky.,sidestepping the question of considering a nominee for the bench before November.

Minority Leader Sen. Harry Reid, D-Nev., delivered a statement to remind Senate watchers that McConnell had said that the nomination should be left to the next president. 

And Sen. Charles E. Grassley, the Senate Judiciary chairman who would determine whether to hold confirmation hearings, took to the Senate floor to say the Senate doesn't need to hurry to consider a replacement. He quoted Vice President Joseph R. Biden Jr., who as a senator made the case for awaiting the results of a presidential election before considering a new appointment to the high court.

Scalia's replacement is already shaping up to be a contentious issue in the current presidential campaign. His death leaves the court evenly split between four liberals and four conservatives, although Justice Anthony M. Kennedy is sometimes seen as a swing vote.  

McConnell delivered a tribute to Scalia, but didn't address the politics of President Barack Obama's pledge to nominate a replacement.

"President Obama said that Justice Scalia will be ‘remembered as one of the most consequential judges and thinkers to serve on the Supreme Court,” McConnell said. “I certainly agree.”

Reid, however, spoke at length about McConnell's statement within hours of Scalia’s death that “this vacancy should not be filled until we have a new president.” Reid called that “a foolish gambit” and an “unprecedented attempt to hold hostage an entire branch of government.”

Reid also quoted statements from Republicans that he said show they used to have the opposite view of the process. Reid included writings from McConnell’s law school days 40 years ago — and a statement from Grassley, R-Iowa —to argue that Republicans shouldn’t hold up the confirmation process.

“I say to my friends across the aisle, for the good of the country, don’t do this,” Reid said. “Do not manipulate our nearly perfect form of government never to appease a radical minority.”

Grassley had his own set of Democratic quotes ready, mostly from Biden, who spent 17 years as the chairman or ranking member of Senate Judiciary. Grassley offered a video clip from 1992 in which Biden, then chairman of Senate Judiciary, said Supreme Court nominations shouldn't be considered once the "political season is underway."

“I believe in his heart of hearts he understands why the Senate must do what he said it must do in 1992,” Grassley said.

Biden’s office issued a statement Monday saying his 1992 speech referred to a “hypothetical vacancy on the Supreme Court.” He said it was inaccurate to see that speech as a sign of his opposition to filling a court vacancy in an election year and noted there was no vacancy at the time.

"My record as Judiciary Committee Chairman is hard to beat,” Biden’s statement said. “I presided over the process that resulted in Justice Kennedy, a Reagan nominee, being confirmed to the Supreme Court in a presidential election year.  I allowed the nominations of Judge Bork and Justice Thomas to proceed to the floor, even though they didn't have the support of the committee.

“During my career on the Judiciary Committee, I ensured the prompt and fair consideration of nine Supreme Court Justices and the current Senate has a constitutional duty to do the same," he said.

Sen. Orrin G. Hatch, a  Utah Republican who sits on Senate Judiciary, said Supreme Court confirmations have been politicized since Robert Bork was rejected in the 1980s. He noted that Democrats led the Senate at the time.

"Look, it's tough enough to do Supreme Court nominations when it's not a political atmosphere. This one is so political," Hatch said. "This is not the time, in the midst of a horrendous presidential campaign, to get into a horrendous fight over a judicial vacancy."

Hatch said he didn't think Republicans would be seen as obstructionists if they delay action, but didn't mind if they are. "I don't think so, but if it does then so what?" 

Senate Judiciary ranking member Patrick J. Leahy, D-Vt., urged Republicans to move any nominations. 

"We've had only once where we've kept the Supreme Court, one member missing, and that was because of the Civil War," said Leahy. "So, he's got the Civil War on his side."

(Niels Lesniewski contributed to this report.)