February 26, 2016
"to elevate the condition of men--to lift artificial weights from all shoulders, to clear the paths of laudable pursuit for all, to afford all an unfettered start and a fair chance, in the race of life." --Abraham Lincoln
Chairman's Note: The Facts On Supreme Court Vacancies
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.
From the outset, all of my Republican colleagues on the Judiciary Committee and 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 nominee until the next president is sworn in.
This position is 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.
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.
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.
Issue in Focus: Bringing Freedom Back to the Internet
A year ago today, five unelected bureaucrats at the Federal Communications Commission (FCC) decided to exploit an 80-year-old law meant for regulating radio, telephone, and telegraph operations, in order to begin regulating the Internet.
As unprecedented a step as this was, it was not the first time FCC bureaucrats attempted a takeover of the Internet.
More than five years ago, the FCC released its Open Internet Order of 2010, a set of new regulations designed to appease so-called "net neutrality" activists who had been fighting for more government control over the Internet.
But Americans fought back — and they won. The Internet service providers challenged the new FCC regulations in federal court, arguing that Title I of the Communications Act of 1934 did not give the FCC the authority to implement net neutrality regulations. And in 2014, the United States Court of Appeals for the D.C. Circuit issued a decision holding that the FCC had exceeded its authority to regulate Internet providers as "information services" under Title I.
Undeterred, and forever striving to expand their powers, the bureaucrats at the FCC did not give up. The next year they released their Open Internet Order of 2015, this time reclassifying Internet service providers as common carrier utilities, which is what AT&T was in 1934 when the federal Communications Act was first passed.
Back in the 1930s, it may have made sense for the FCC to protect consumers from a single company with monopoly control over an emerging communications technology. But we live in the 21st Century, and the Internet today is categorically different from telecommunications technology from the Great Depression era. Today, with numerous providers fighting over multiple platforms to offer consumers the best experience, the FCC's anachronistic approach will only stifle Internet-drive innovation, which will only hurt the consumers it claims to protect.
The reality is that the Internet has already taught us that the best way to protect free speech online is to keep the Internet open and free from cronyist bureaucratic control, allowing permissionless innovation to produce new and dynamic technologies that empower and connect people. That's why Congress should take up and pass the Restoring Internet Freedom Act. This bill will repeal the FCC's net neutrality rules and set the stage for more comprehensive reforms of federal technology policy.
Instead of expanding the scope of an 80-year-old law beyond recognition, we should trust the good judgment and common sense of the American people to decide what works and what doesn't. This has been our nation's way since its inception: the belief that ordinary men and women – not distant, unelected bureaucrats – make their own decisions. The Restoring Internet Freedom Act is an important step in that direction.
