[Congressional Record Volume 162, Number 27 (Monday, February 22, 2016)]
[Senate]
[Pages S897-S899]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. GRASSLEY. Madam President, we find ourselves in a very unusual 
situation. We are in a Presidential election year. The campaign for our 
next Commander in Chief is in full swing. Voting has begun. Some 
candidates for President have dropped out of the race after 
disappointing finishes in the primaries. Republicans hold the gavel in 
the U.S. Senate, and a term-limited Democrat in the twilight of his 
Presidency occupies the White House. It is within this context that our 
Nation has lost one of the greatest legal minds ever to serve the 
Court.
  Justice Scalia's death marks the first time a sitting Supreme Court 
Justice passed away in a Presidential election year in 100 years, and 
it is the first time a sitting Supreme Court Justice passed away in a 
Presidential election year during a divided government since 1888.
  As my colleagues and I grapple with how the Senate Judiciary 
Committee should approach this set of circumstances, we seek guidance 
and wisdom from a number of sources. These include history, practice, 
and common sense, and, yes, we look to what former committee chairmen 
have had to say on the subject. In reviewing this history, I am 
reminded of remarks a former chairman delivered during an election 
year. That former chairman tackled this knotty problem, and he 
described what should happen if a Supreme Court vacancy arises during a 
Presidential election year. In fact, this chairman's guidance is 
particularly instructive because he delivered his remarks in a 
Presidential election year during a time of divided government.
  The Presidential election year was 1992. We had no Supreme Court 
vacancy. No Justice had passed away unexpectedly. No Justice had 
announced his or her intention to retire. Rather, it was the fear of an 
unexpected resignation that drove this former chairman to the Senate 
floor 1 day before the end of the Court's term.
  Near the beginning of his lengthy remarks, this chairman--who was and 
remains my friend--noted another speech he delivered several years 
prior on the advice and consent clause. That speech,

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from July 1987, was titled ``The Right and Duty of the Senate to 
Protect the Integrity of the Supreme Court.'' This chairman delivered 
those remarks in 1987 as the Senate embarked on one of its saddest 
episodes: the unfair and ugly treatment of an exceptional jurist, Judge 
Robert Bork.
  I don't reference that episode to open old wounds, only to provide 
context because it was in that speech during the debate that this 
former chairman defended the Senate's constitutional role in the 
appointment process. It was there in that speech during that debate in 
1987 that this former chairman reached back to an early debate from an 
especially warm summer in Philadelphia 200 years prior. He reached back 
to the Constitutional Convention because it was then and there that 
individuals such as Rutledge of South Carolina, Wilson of Pennsylvania, 
Gohram of Massachusetts, and, of course, the father of the 
Constitution, Madison of Virginia, debated how our young Nation's 
judges were going to be appointed. It was his examination of the debate 
in 1787 that led this former chairman to declare 200 years later, 
nearly to the day:

       Article II, Section 2 of the Constitution clearly states 
     that the president ``shall nominate, and by and with the 
     advice and consent of the Senate, shall appoint . . . judges 
     of the Supreme Court.'' I will argue that the framers 
     intended the Senate to take the broadest view of its 
     constitutional responsibility. I will argue that the Senate 
     historically has taken such a view.

  That discussion on the advice and consent clause transpired in 1987, 
but, as I said, it was during a Presidential election year in 1992 that 
my friend, this former chairman, took to this very floor. Why did he 
begin his remarks in 1992 by reference to an earlier speech on the 
advice and consent clause? I will say it wasn't only because Senators 
sometimes like to quote the wise words they once spoke. My friend 
referenced his own remarks on the advice and consent clause because he 
wanted to remind his colleagues in this Senate of this Senate's 
constitutional authority to provide or withhold consent as 
circumstances might require. And he wanted to remind his colleagues of 
the Senate's constitutional authority before he addressed the real 
reason he rose to speak in 1992: the prospect of a Supreme Court 
vacancy in a Presidential election year.
  After discussing confirmation debates that had not occurred in 
Presidential election years, my friend turned to some of those who had:

       Some of our nation's most bitter and heated confirmation 
     fights have come in presidential election years. The bruising 
     confirmation fight over Roger Taney's nomination in 1836; the 
     Senate's refusal to confirm four nominations by President 
     Tyler in 1844; the single vote rejections of nominees Badger 
     and Black by lameduck Presidents Fillmore and Buchanan, in 
     the mid-19th century; and the narrow approval of Justices 
     Lamar and Fuller in 1888 are just some examples of these 
     fights in the 19th century.

  This former chairman continued:

       Overall, while only one in four Supreme Court nominations 
     has been the subject of significant opposition, the figure 
     rises to one out of two when such nominations are acted on in 
     a presidential election year.

  This former chairman then outlined some additional history of Supreme 
Court nominations in Presidential election years. He emphasized that in 
four vacancies that arose during a Presidential election year, the 
President exercised restraint and withheld from making a nomination 
until after the election. One of those Presidents was Abraham Lincoln.
  Ironically, like President Obama, our 16th President was a lawyer and 
called Illinois home. But unlike our current President, Abraham Lincoln 
didn't feel compelled to submit a nomination before the people had 
spoken in November of 1864.
  Eventually, my friend got to the heart of the matter during election 
year 1992:

       Should a justice resign this summer and the President move 
     to name a successor, actions that will occur just days before 
     the Democratic Convention and weeks before the Republican 
     Convention meets, a process that is already in doubt in the 
     minds of many will become distrusted by all. Senate 
     consideration of a nominee under these circumstances is not 
     fair to the president, to the nominee, and to the Senate 
     itself.
  My friend went on to say:

       It is my view that if a Supreme Court justice resigns 
     tomorrow, or within the next several weeks, or resigns at the 
     end of the summer, President Bush should consider following 
     the practice of a majority of his predecessors and not name a 
     nominee until after the November election is completed.

  And what is the Senate to do if a President ignores history, ignores 
good sense, ignores the people, and submits a nominee under these 
circumstances? Here again my good friend, the former chairman, had an 
answer:

       It is my view that if the President goes the way of 
     Presidents Fillmore and Johnson and presses an election-year 
     nomination, the Senate Judiciary Committee should seriously 
     consider not scheduling confirmation hearings on the 
     nomination until after the political campaign season is over.

  Well, what of the likely criticisms that will be lobbed at the 
Judiciary Committee and at the entire Senate if they were to choose 
this path of not holding a hearing?
  My friend, the former chairman, continued:

       I am sure, Mr. President, having uttered these words, some 
     will criticize such a decision and say it was nothing more 
     than an attempt to save the seat on the Court in the hopes 
     that a Democrat will be permitted to fill it, but that would 
     not be our intention, Mr. President, if that were the course 
     to choose in the Senate, to not consider holding hearings 
     until after the election.

  Continuing to quote:

       Instead, it would be our pragmatic conclusion that once the 
     political season is under way . . . action on a Supreme Court 
     nomination must be put off until after the election campaign 
     is over. That is what is fair to the nominee and is central 
     to the process. Otherwise, it seems to me, Mr. President, we 
     will be in deep trouble as an institution.

  But won't that impact the Court? Can it function with eight members 
for some time? Won't it create ``crisis''? Not remotely. My friend 
considered this issue as well and appropriately dismissed it:

       Others may fret that this approach will leave the Court 
     with only eight members for some time. But as I see it, Mr. 
     President, the cost[s] of such a result, the need to re-argue 
     three or four cases that will divide the Justices four to 
     four, are quite minor compared to the cost that a nominee, 
     the President, the Senate, and the Nation would have to pay 
     for what assuredly would be a bitter fight, no matter how 
     good a person is nominated by the President, if that 
     nomination were to take place in the next several weeks.

  ``In the next several weeks'' refers to sometime between June and 
November of 1992.
  I want to read this part again:

       Others may fret that this approach will leave the Court 
     with only eight members for some time. But . . . the cost[s] 
     of such a result . . . are quite minor compared to the cost 
     that a nominee, the President, the Senate, and the Nation 
     would have to pay for what assuredly would be a bitter fight, 
     no matter how good a person is nominated by the President.

  That is very well said. This former chairman is eloquent, where I 
happen to be very plainspoken. I would put it this way: It is the 
principle that matters, not the person.
  My friend concluded this section of his remarks this way:

       In the end, this may be the only course of action that 
     historical practice and practical realism can sustain.

  I think probably everybody kind of knows these are the Biden rules.
  The Biden rules recognize that ``the framers intended the Senate to 
take the broadest view of its constitutional responsibility.''
  The Biden rules recognize the wisdom of those Presidents--including 
another lawyer and former State lawmaker from Illinois--who exercised 
restraint by not submitting a Supreme Court nomination before the 
people had spoken.
  The Biden rules recognize that the Court can operate smoothly with 
eight members for some time, and ``the cost of such a result, the need 
to re-argue three or four cases that will divide the Justices four to 
four, are quite minor compared to the cost that a nominee, the 
President, the Senate, and the Nation would have to pay for what 
assuredly would be a bitter fight.''
  The Biden rules recognize that under these circumstances, ``[the 
President] should consider following the practice of a majority of his 
predecessors and not name a nominee until after the November election 
is completed.'' The President he is referring to there is President 
George H.W. Bush.
  The Biden rules recognize that under these circumstances, ``[it does 
not] matter how good a person is nominated by the President.''
  The Biden rules recognize that ``once the political season is under 
way . . . action on a Supreme Court nomination

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must be put off until after the election campaign is over. That is what 
is fair to the nominee and is central to the process.''

  The Biden rules recognize that ``Senate consideration of a nominee 
under these circumstances is not fair to the President, to the nominee, 
or to the Senate itself.''
  The Biden rules recognize that under these circumstances, ``the 
Senate Judiciary Committee should seriously consider not scheduling 
confirmation hearings on the nomination until after the political 
campaign season is over.''
  Vice President Biden is a friend, as I said three or four times 
during my remarks, and I say it with the utmost sincerity. I served 
with him in this body and on the Judiciary Committee for nearly 30 
years. He is honorable, he is sincere, and he is loyal to the President 
he now serves. Because I know these things about him, I can say with 
confidence that he will enthusiastically support the President and any 
nominee he submits to the Senate, but I also know this about Vice 
President Biden: He may serve as Vice President, but he remains a U.S. 
Senator. That is why when he rose to speak in this Senate Chamber for 
the last time, he shared this with his colleagues:

       I may be resigning from the Senate today, but I will always 
     be a Senate man. Except for the title of ``father,'' there is 
     no title, including ``Vice President,'' that I am more proud 
     to wear than that of United States Senator.

  If the President of the United States insists on submitting a nominee 
under these circumstances, Senator Biden, my friend from Delaware, the 
man who sat at a desk across the aisle and at the back of this Chamber 
for more than 35 years, knows what the Senate should do, and I believe 
in his heart of hearts he understands why this Senate must do what he 
said it must do in 1992.
  I yield the floor and give back the remainder of my time.

                          ____________________