[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
[[Page S899]]
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.
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