Utah Sen. Orrin Hatch — one of the longest serving members of the Judiciary Committee — said on Wednesday that Justice Antonin Scalia would not be upset for the Supreme Court to proceed with a missing seat, saying the deceased justice "knows that the court can function with eight members."
It's not the first time Hatch has spoken on behalf of a dead conservative justice. In September 2005, Hatch argued in an interview aired on C-SPAN that the Senate should proceed with the confirmation of John Roberts because William Rehnquist would have wanted the court to open its next term with as many members as possible.
"Chief Justice Rehnquist would want it to go forward," Hatch said of Roberts' confirmation hearings. "He would want us to move ahead. He revered the court. As you know, gave 33 years of his life to the court. And he certainly would not want to take any—would not want us to take any action that would not have as full a complement of the court sitting the first Monday of October that we can put there."
At the time, President George W. Bush had nominated Roberts to replace the retiring Sandra Day O'Connor. Roberts ultimately replaced Rehnquist as chief justice, after the late chief justice's death, while Bush nominated Samuel Alito to replace O'Connor. President Obama has been criticized in recent days for having joined the filibuster against Alito as a senator in 2006, an approach the White House has said the president now "regrets."
Hatch, who later in the day made similar comments on CNN, also said in the interview that one problem with Bush appointing Roberts to replace Rehnquist was that "the Democrats would try to use that as an excuse to try to delay it and we do need to have Roberts on the court by the first Monday in October."
Beyond his speculation about how Scalia would want the Senate to proceed on selecting his successor, Hatch has argued that the Senate should not confirm any nominee until after the election.
"I don't want to get the Supreme Court embroiled in this. I think Justice Scalia deserves better treatment than that," he told radio host Hugh Hewitt on Wednesday. "You know, the American people have already begun voting for the next president of the United States. You know, and I believe that Justice Scalia's replacement should not take place until after the American people have made that choice."