[Congressional Record Volume 162, Number 27 (Monday, February 22, 2016)]
[Senate]
[Pages S894-S896]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   REMEMBERING JUSTICE ANTONIN SCALIA AND FILLING THE SUPREME COURT 
                                VACANCY

  Mr. REID. Madam President, we were all shocked by the sudden passing 
of Supreme Court Justice Antonin Scalia. Justice Scalia and I had our 
differences. However, there was no doubting his intelligence or 
dedication to the country. I offer my condolences to the entire Scalia 
family, who laid to rest a devoted husband, father, and grandfather 
this weekend.

[[Page S895]]

  I watched the funeral from Nevada, and I was deeply impressed with 
Justice Scalia's son, Reverend Paul Scalia, and the moving eulogy he 
gave his father. It was quite remarkable.
  But now President Obama must nominate a qualified individual to the 
Supreme Court. Once the President has sent a nominee to the Senate, it 
is our responsibility to act.
  Unfortunately, it appears that the Republican leader and his 
colleagues have no intension of filling this important vacancy. The 
Republican leader has repeatedly declared himself to be ``the proud 
guardian of gridlock.'' That is a quote. He has lived up to that 
moniker, and that is an understatement.
  In recent years, the Republican leader and the Republican Senators 
have done everything possible to grind the wheels of government to a 
halt. But now we are seeing something from the Republican leader that 
is far worse than his usual brand of obstruction. We are seeing an 
unprecedented attempt to hold hostage an entire branch of government.
  The damage already done to the legislative branch has been written 
about. The last 7 years, the Republicans have done everything they can 
to stop President Obama's legislative ability to move forward. As 
leader of this democracy, it is too bad that President Obama has had to 
put up with this obstruction of everything dealing with the 
legislature.
  The statement the Republican leader issued less than an hour after 
Justice Scalia's death announcement argued that starting now, any 
President should be denied the right to fill a Supreme Court vacancy in 
a Presidential election year.
  Think about that. This is a foolish gambit, one to deny President 
Obama his constitutional right to appoint nominees to the Supreme 
Court. This is a full-blown effort to delegitimize President Obama, the 
Presidency, and undermine our basic system of checks and balances, 
which is integral to our Constitution.
  I can find no limits on the President's legal authority to nominate 
Supreme Court Justices during an election year in our Constitution. I 
can find no mention of a 3-year Presidency in our Constitution. What I 
do find in the Constitution is article II, section 2, which clearly 
provides President Obama with the legal obligation to nominate Justices 
to the Supreme Court, contingent on the advice and consent of the 
Senate.
  This is how our system of government has operated for more than 200 
years. This constitutional prerogative is essential to the basic 
functioning of our coequal branches of government. What the Republican 
leader is suggesting runs contrary to two centuries of precedent and is 
inconsistent with the Constitution.
  Our Founding Fathers constructed this American democracy while 
maintaining certain assumptions of us as elected officials in the 
future. They expected us to be rational. They expected us to operate in 
good faith. They expected this government to be effective. The 
Republican leader's proposal is none of those things. It is, instead, 
an attempt to nullify what James Madison and the other constitutional 
architects envisioned.
  The Founding Fathers never intended the Senate to simply run out the 
clock on its constitutional duties, subverting the President's 
authority and leaving the judiciary in limbo. The authors of the 
Constitution never envisioned the level of cynicism and bad-faith 
governance that we see exhibited by today's Republican Party--a 
Republican Party that so loathes this President that it is willing to 
render useless our government's system of checks and balances.
  Senate Republicans would have the American people believe that is a 
long-held practice to deny the President the right to fill a Supreme 
Court vacancy. That is simply not true. I have heard several of my 
Republican colleagues repeat this line in public statements. It grieves 
me to say it, but the fact is, when Republicans repeat this statement, 
they are clearly spreading a falsehood. It is not true. I have enormous 
respect for my Republican friends, but repeatedly skirting the truth is 
beneath the dignity of their office.
  According to Amy Howe, an expert on Supreme Court proceedings and 
editor at the popular SCOTUSblog--the Supreme Court of the United 
States blog--there is no such precedent. She writes:

       The historical record does not reveal any instances since 
     at least 1900 of the president failing to nominate and/or the 
     Senate failing to confirm a nominee in a presidential 
     election year because of the impending election.

  There is not one shred of evidence in the last 116 years to back the 
Republicans' claims. Democrats never stopped a Republican Supreme Court 
nominee from receiving a hearing and ultimately getting a vote on 
confirmation--never, never, never.
  Republicans want to talk about precedent. Well, let's talk about 
precedent. As recently as 1988, which was both an election year and the 
last year of a Presidency, the Senate confirmed Supreme Court nominees. 
That year, a Democratic Senate confirmed President Ronald Reagan's 
nomination of Justice Anthony Kennedy in the final year of his 
administration. I voted to confirm Justice Kennedy's nomination, as did 
my friend, the current chairman of the Judiciary Committee, Senator 
Grassley.
  I think it is well that the Presiding Officer today is the junior 
Senator from Iowa. I hope she will listen to what Senator Grassley, the 
senior Senator from Iowa, has said time and time again. Senator 
Grassley had no trouble supporting Justice Kennedy's nomination then, 
notwithstanding the fact that it occurred during President Reagan's 
last year in office. Since that time, the senior Senator from Iowa has 
been on record defending the President's right to put forward nominees 
during a Presidential election year. In 2008, in fact, Senator Grassley 
said: ``The reality is that the Senate has never stopped confirming 
judicial nominees during the last few months of a president's term.'' I 
will repeat that quote. ``The reality is that the Senate has never 
stopped confirming judicial nominees during the last few months of a 
president's term.'' I agree with Senator Grassley--or at least I agreed 
with him. Frankly, now I am not sure where the senior Senator from Iowa 
stands. He issues a contradictory statement, it seems, every day on 
this one issue.
  Another person who voted to confirm Justice Kennedy in 1980 was a 
first-term Senator from Kentucky, Senator McConnell. In fact, for 40 
years the Republican leader was remarkably consistent in asserting that 
the Senate has a duty to consider the Supreme Court's Presidential 
nominations.
  As a law student at the University of Kentucky, he wrote in 1970:

       Even though the Senate has at various times made purely 
     political decisions in its consideration of Supreme Court 
     nominees, certainly it could not be successfully argued that 
     it is an acceptable practice.
       If political matters were relevant to senatorial 
     consideration it might be suggested that a constitutional 
     amendment be introduced giving to the Senate rather than the 
     president the right to nominate Supreme Court justices.

  My friend the Republican leader carried that belief with him into 
public service. As a freshman Senator in 1986, during a Senate 
Judiciary Committee hearing, he said:

       Under the Constitution, our duty is to provide advice and 
     consent to judicial nominations, not to substitute our 
     judgment for what are reasonable views for a judicial nominee 
     to hold.

  Again, in 1990, the Senator from Kentucky said:

       It is clear under our form of government that the advice 
     and consent role of the Senate in judicial nominations should 
     not be politicized.

  In 2005, the Senator from Kentucky reaffirmed his stance, stating:

       Our job is to react to that nomination in a respectful and 
     dignified way, and at the end of the process, to give that 
     person an up-or-down vote as all nominees who have majority 
     support have gotten throughout the history of the country. 
     It's not our job to determine who ought to be picked.

  Finally, just 6 years ago, the Republican leader put it in the 
simplest terms possible:

       Americans expect politics to end at the courtroom door.

  These are just a few examples, but there are pages of similar quotes 
from the Republican leader spanning four decades on this subject. 
Unfortunately, he seems to no longer believe that politics end at the 
courtroom door. The reason for the Republican leader's about-face is 
clear: He and his party want to undermine this President,

[[Page S896]]

Barack Obama. Senate Republicans would upend our Nation's system of 
checks and balances rather than afford President Obama the same 
constitutional authority his 43 predecessors enjoyed.
  Throughout the news today, it is said by all the Republican think 
tanks--or a lot of them--that it is more important for the Republicans 
to make sure Obama does not get a Supreme Court nominee on the floor of 
the Senate than it is for them to maintain the majority in the Senate. 
Think about that. That is not what I am saying; that is what they are 
saying.
  A few minutes ago, the junior Senator from Delaware was here on the 
Senate floor reading George Washington's Farewell Address. He did a 
remarkable job. This man, who was the national debate champion twice, 
did a very good job.
  In his address, President Washington warned of the partisan party 
politics that Republicans are now employing. He warned of their 
negative influence on our government. He said:

       All obstructions to the execution of the laws, all 
     combinations and associations, under whatever plausible 
     character, with the real design to direct, control, 
     counteract or awe the regular deliberation and action of the 
     constituted authorities, are destructive of this fundamental 
     principle, and of fatal tendency. They serve to organize 
     faction, to give it an artificial and extraordinary force; to 
     put, in the place of the delegated will of the nation, the 
     will of a party.

  The American people are watching. They are watching the Republicans' 
obstruction on this issue and the direct contravention of the belief of 
President George Washington. The vast majority of Americans are 
wondering how Republicans can say the Senate is back to work--we hear 
that all the time from my friend the Republican leader--while at the 
same time denying a vote on a nominee who hasn't even been named yet.
  I say to my friends across the aisle: For the good of the country, 
don't do this.
  I hope my Republican colleagues will heed the counsel offered by the 
senior Senator from Iowa and chairman of the Judiciary Committee, 
Charles Grassley, just a few short years ago when he said:

       A Supreme Court nomination isn't the forum to fight any 
     election. It is the time to perform one of our most important 
     Constitutional duties and decide if a nominee is qualified to 
     serve on the nation's highest court.

  Elections come and go, but the centerpiece for our democracy, the 
U.S. Constitution, should forever remain our foundation.
  I say to my Senate Republican colleagues: Do not manipulate our 
nearly perfect form of government in an effort to appease a radical 
minority.
  Madam President, will the Chair announce the business of the day.

                          ____________________