[Congressional Record Volume 162, Number 28 (Tuesday, February 23, 2016)]
[Senate]
[Pages S939-S942]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Filling the Supreme Court Vacancy

  Mrs. BOXER. Mr. President, I came to the floor because I am stunned. 
I just learned that the Republicans have announced to the country they 
will not even call a hearing, if and when President Obama does his job 
and nominates a replacement for Justice Scalia.
  We send our heartfelt sympathy to his family.
  I don't know where the Republicans have come up with this notion that 
this is the right thing to do. If you look at the strict 
constitutionalists, you know they are reading the Constitution, unless 
they are phonies. This is what the Constitution says, the President 
shall ``nominate, and by and with the Advice and Consent of the Senate, 
shall appoint Ambassadors, other public Ministers and Consuls, Judges 
of the supreme Court.'' Where in this does it say: except in election 
years. As a matter of fact, we have acted 14 times in election years.

[[Page S940]]

  Whoever is a strict constructionist should read the Constitution, 
article II, section 2, clause 2. I am going to read it again: The 
President shall ``nominate, and by and with the Advice and Consent of 
the Senate, shall appoint Ambassadors, other public Ministers and 
Consuls, Judges of the supreme Court.''
  It doesn't say as Senator Cornyn said: Oh, the President can 
nominate, but nobody else has a job to do. Oh no. It says: ``. . . and 
with the Advice and Consent of the Senate . . .''
  To have such a press conference, as I understand it--I didn't see it 
myself, but it has been reported to me--there has been an announcement 
that the Republicans will not even hold a hearing, which goes against 
this Constitution. I wouldn't be surprised if there is a lawsuit 
brought by the people of this country, 70 percent of whom believe we 
have an obligation. We have an obligation.
  Nowhere in the Constitution does it say it is too late for the 
President to nominate. Guess what. The Republicans keep saying we need 
an elected President. Well, I have good news for them. This President 
was elected twice and he has about a year left. Guess what. I am not 
going to run again, but I am here now. I want to work. I did not take 
this job to have a year off and not worry about working in my last 
year.
  Nowhere in the Constitution does it say: Oh, and by the way, don't 
advise and consent if it is a Democratic President in his second term. 
It does not say that. So if you consider yourself a strict 
constructionist, then pay attention to this. I am proud that several 
Republicans on the other side said: Baloney, we don't go along with it. 
Good for them and more should do it.
  It doesn't say in the Constitution, you only advise and consent if it 
is a Republican President with a Republican Senate.
  Again, the Senate over the years has repeatedly considered Supreme 
Court nominees in both election years and in the final year of a 
President's term.
  Justice Kennedy, who serves now, a fellow Californian, was nominated 
by President Reagan in 1987. I was over on the House side, and I didn't 
have anything to do with it, but I sure watched it. Kennedy was 
confirmed by a Democratic Senate during Reagan's last year in office.
  My Republican friends say: Oh, but this Senator said this about it 
and that Senator said that and Joe Biden said this. It doesn't matter 
what people say. It is what we do, and 14 times in history we have 
voted on judges in an election year.
  My Republican colleagues who suggest that this process cannot be done 
before President Obama leaves office are fooling themselves. History 
has disproven them and the Constitution is going to chastise whoever 
says: I want a dead Constitution. Read this. This is very clear. It 
absolutely is.
  So I have a message for my Republican friends. Pretty simple. Pretty 
simple. Do your job. Do your job. If you are afraid to do your job, 
then do something else with your life. If you don't want to do your job 
because you are worried that one moderate may get through, then make 
your argument. If you want to vote no, vote no, but to hold a press 
conference and say you will not even hold a hearing is outrageous.
  Every day in talented cities across this country, Americans show up 
for work and they do their jobs. They don't call their bosses and say: 
You know, I just don't feel like doing this today. I am healthy, I am 
fine, I am well, but you know what, I don't want to do my job. They 
would be fired and they should be. Do your job. You are elected to do 
your job. The American people show up for their jobs. They do their 
jobs. It is as simple as that. The Justices of the Supreme Court show 
up and they do their jobs every day. Justice Scalia did it. They all do 
it. They hear cases. They write opinions.
  The Supreme Court is the last stop on the justice train, but to be 
able to function as our Founding Fathers in the U.S. Constitution 
intended, they need a full bench with all nine Justices. A Supreme 
Court with eight Justices is not a functioning Court.
  Let us look at the Republicans' hero, Ronald Reagan. We always hear 
them say: Ronald Reagan. I was proud to serve in the House during 
Ronald Reagan's term. I didn't agree with him on a lot of things, but I 
agree with him on this. Do you know what he said?

       I look forward to prompt hearings conducted in the spirit 
     of cooperation and bipartisanship. I will do everything in my 
     power as President to assist in that process.

  President Ronald Reagan, November 12, 1987. What did he say? Did he 
get up and say: Oh, it is an election year--which it was. No. Kennedy 
was voted on in an election year and President Reagan made the case.
  This is what else Ronald Reagan said: ``Every day that passes with a 
Supreme Court below full strength impairs the people's business in that 
crucially important body.''
  Let me say that again. Ronald Reagan, who was pushing for a vote on a 
Supreme Court Justice in an election year, said the following: ``Every 
day that passes with a Supreme Court below full strength impairs the 
people's business in that crucially important body.''
  I don't understand where the Republicans are coming from. They are 
disregarding Ronald Reagan, their hero. They are disregarding the 
Constitution that they say is their shining star of their being, which 
it should be for all of us, and they stood there today and blatantly 
announced they are not even going to hold a hearing on a nominee before 
they even know who he or she is. What is that about? I am truly 
stunned. I thought I had seen everything, but I have never seen this. 
You show up and you do your job.
  I am going to show you a few other quotes of people who are very 
important to this conversation and what they are saying about not 
moving forward. How about Sandra Day O'Connor, what an incredible 
woman. She was appointed by Ronald Reagan, the first female ever 
appointed to the Supreme Court, a magnificent person and a Republican.
  What did she say? ``I think we need somebody there, now, to do the 
job, and let's get on with it.'' She just said that 10 days ago or 
less. Is she a partisan? I don't think so. She is speaking from the 
heart. She is speaking from her soul. She is speaking from experience. 
She knows the Court has important cases before it and will be tied in 
knots if we don't have a Court at full strength.
  Again, here is what she said, Republican Sandra Day O'Connor, 
esteemed member of the Supreme Court, a Ronald Reagan nominee: ``I 
think we need somebody there, now, to do the job, and let's get on with 
it.''
  I am going to show you two more quotes. This is from the American 
Constitution Society:

       A vacancy on the Court for a year and a half, which is what 
     the Republicans want, at least a year and a half, would mean 
     many instances where the Court could not resolve a split 
     among the circuits. There would be the very undesirable 
     result that the same federal law would have differing 
     meanings in various parts of the country.

  That is the American Constitution Society.
  Then we have another quote I wish to share with you by the director 
of the Byron White Center at the University of Colorado:

       It would essentially shut the Supreme Court down for two 
     years. It would be a monumental crisis for the development of 
     the law and the need to resolve large legal questions.

  Let me say it again.

       It would essentially shut the Supreme Court down for two 
     years. It would be a monumental crisis for the development of 
     the law and the need to resolve large legal questions.

  It is not as if large legal questions aren't at stake. Right now the 
Supreme Court is set to look at some incredibly important cases that 
have real effects on our people. This isn't some argument in a salon. 
This is real stuff. The cases can't wait, and it doesn't matter what 
side you are on with these cases. They have to be resolved.
  What about voting rights? I don't think there would be a difference 
of opinion in this Chamber that this is what makes this country great 
and special, the right to vote, the responsibility to vote. We have 
many States that have put forward voter ID laws. They need to be told 
whether they are fair or unfair, whatever side you come down on. We 
need a Court to look at voting rights cases and see who the eligible 
voters are.
  Affirmative action. They are going to reexamine that case. Whatever 
side you are on, it has to be decided.

[[Page S941]]

  Workers' rights. The Court will decide the impact of the ability of 
the union to represent millions of working Americans. Whatever side you 
are on, there needs to be a decision, otherwise you are going to have 
different States with different laws and it makes no sense.
  This is one Nation under God. That is why we have a U.S. Senate and a 
U.S. House and a U.S. President and a U.S. Supreme Court--because we 
are one Nation and these issues have to be decided. There is one on 
employee discrimination. How do people get their day in court if they 
are being discriminated against? It doesn't matter what side you are 
on. The fact is there needs to be a decision.
  Women's health. There is a big case on women's health as to whether 
workers can get birth control. Again, whatever side you are on, pro, 
con, there needs to be a decision.
  It is about women, health care, voting rights, students. These cases 
have real consequences. I am going to conclude with one more chart that 
deals with the length of Supreme Court Justices for the past 35 years. 
Here you see the list of the various nominees. Not all of these made 
it, a couple did not, but here is the deal with these. O'Connor waited 
95 days, Rehnquist 92, Scalia 82, Bork 109, Kennedy 113, Souter 74, 
Thomas 110, Ginsburg 137, Breyer 114, Roberts 90, Alito 95, Sotomayor 
97, Kagan 118.
  Under Mitch McConnell's plan, the Republican plan that they laid out, 
if you averaged all of this, you get 102 days. That is the average it 
takes. Under McConnell's plan, it would take 444 days, at best. That is 
assuming everything goes perfectly well. It could take a lot longer.

  What does this mean? Anyone within the sound of my voice has heard 
this: Justice delayed is justice denied. That is a fact. And it is used 
throughout the country when we talk about the importance of making 
these decisions. When our constituents go to jury duty, what are they 
asked? Can you make this decision? Can you come to this decision? 
Because everyone deserves to have an answer.
  So, in conclusion, take a look at this. This is an abomination. This 
is the number of days we have seen over the last 35 years that it took 
to confirm. Fourteen of our Justices have been confirmed in election 
years since the beginning of this country, and this takes us back to 
the Civil War days--imagine--when we really had a country divided.
  This is not what we need to do right now, with all of these decisions 
coming up. Regardless of your stand on them, people deserve justice.
  I will conclude with the ``Do Your Job'' chart because I have to say 
that is what it comes down to. I urge the people of this great country 
to call the Republicans, every one of them, with three words: Do your 
job. And if the person who answers says ``I don't know what you mean,'' 
say ``Do your job. Let the process move forward on the Supreme Court 
Justice.'' And if they say ``Well, we want an elected President,'' what 
will be told to them is ``We are fortunate. We have one, elected not 
once but twice.'' More than enough time remains for him to do his job, 
and more than enough time remains for us to do ours.
  Republicans, do your job.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I rise today to talk about the 
importance of filling the current vacancy on the Supreme Court of the 
United States. I appreciate the words of my colleague from California.
  I wish to begin by saying that my prayers and thoughts are with the 
family and friends and Supreme Court colleagues of Justice Scalia. He 
was a great scholar who had friends in many places. Just last week I 
was at the University of Chicago Law School, where I went to law 
school, and so many people have stories. He used to teach there. He 
taught there for a long period of time, and they miss him very much.
  The Supreme Court has the constitutional responsibility to weigh some 
of the most important issues facing the American people. From freedom 
of speech, to due process, to doing business in America, Supreme Court 
decisions have impacted and continue to impact the daily life of every 
citizen of this country. As one of the three pillars of our government, 
we value the Court's distinctive insulation from public opinion. 
Justices commit themselves to the law and to the Constitution and not 
to politics or partisanship.
  Americans need and deserve to have a functional and fully staffed 
Supreme Court. We cannot delay consideration of the next Supreme Court 
nominee. As my colleague just pointed out, we would have to go back to 
the Civil War, to a time where a position--an important key position on 
the Supreme Court of the United States--was left open. We would have to 
go back to a time when it was left open for more than a year. We would 
have to go back to a time before we had planes, before we had 
automobiles, before we had washing machines--you name it. We would have 
to go back to the Civil War.
  Delaying the confirmation of a new Justice will prevent the Court 
from issuing binding precedent and deny access to justice for 
Americans. Lower courts will be left with decisions, and decisions will 
not be made in those cases. That is why the Constitution of the United 
States says that the President shall--shall--nominate someone to the 
Supreme Court. It doesn't say that he will wait for a year. It doesn't 
say that he can't do it in an election year. It says that he shall 
nominate someone.
  We have a lot of Members of this great body who are lawyers, a lot of 
whom I have heard quoting the Constitution. A lot of them believe in 
strict interpretation of the words of the Constitution. Well, the words 
of the Constitution say that the President ``shall nominate'' and that 
the Senate's job is to ``advise and consent.'' It says that it is the 
Senate's job. It doesn't say that it is the Senate's job to avoid 
things and to just go on TV and to run ads. No. It says that the Senate 
has a job to do. The Senate has a job to do.
  Both the President and the Senate have a constitutional duty to 
protect the Supreme Court's ability to function and dispense justice--
not to tell the Supreme Court what to do, not to dictate their 
decisions, but to make sure they are simply able to do justice. This 
means they must be fully staffed and have the Justices in place, and it 
also means they should be funded. Those are our jobs.
  According to our Constitution, the President replaces vacant seats on 
the Supreme Court. That duty does not end, as I noted, in a 
Presidential year, just as the responsibilities of all Senators in 
their States and in their Nation do not end in an election year.
  President Obama was elected to serve out his entire second term, not 
just the first 3 years. For 332 long days, the President will be the 
democratically elected President of the United States--democratically 
elected, as in a democracy, as in how our democracy functions. He has 
an obligation to all Americans to dutifully execute his oath of office.
  The President has not yet announced a nominee to fill the current 
vacancy on the Court. When he does, it will be the constitutional duty 
of each one of us to consider the nominee on his or her merits and then 
choose whether to vote yes or no. It is really not that hard. It is 
what the kids learn when they are taught social studies and civics when 
they are in elementary school. The American people who voted for us, as 
well as those who didn't vote for us, expect us to do the jobs we were 
elected to do, regardless of the timing.
  A complete refusal to engage in this constitutionally required 
process before the President has even announced a nominee is dangerous 
for our system of governance. It defies the words of the Constitution. 
This Chamber would be neglecting a key constitutional duty if it 
prevented a well-qualified nominee from serving on the Supreme Court. 
And guess what. How do we figure out if someone is well qualified? We 
have hearings. That is what we have been doing for decades now. We have 
hearings to figure out whether this person is qualified. That is how we 
advise. That is how we consent. That is how we do our duty under the 
Constitution.
  It is for that reason that I urge my colleagues to continue in the 
Senate's bipartisan tradition of giving full and fair consideration to 
Supreme Court nominees. We have precedent for the Senate performing 
this role in the final year of a Presidency. Most recently,

[[Page S942]]

the Senate confirmed Justice Kennedy, someone who is currently serving 
on the Supreme Court, a current member sitting on the Supreme Court, 
someone who makes decisions every day. When was he confirmed? He was 
confirmed in the last year of Ronald Reagan's Presidency. And guess 
what. The Senate was controlled by Democrats. So we had the exact 
opposite situation. Now we have a Democratic President and we have a 
Senate that is in the control of Republicans. Back then we had a 
Republican President and a Senate that was in the control of Democrats. 
People say: Well, what does history show us? What do we know? To me, 
that is the best example of history. And we know what happened: Justice 
Kennedy was confirmed, on Ronald Reagan's nomination, by a Democratic 
Senate in an election year unanimously--unanimously.
  The Senate has taken such action more than a dozen times in our 
Nation's history, and there is no reason to abandon that precedent now. 
I am talking about when a Justice position opens up during an election 
year. We have that precedent, which I think is important. Again, I 
think the most important precedent, the most important example for 
historians, is what I led with: the fact that we have to go back to the 
Civil War to find a time when we left a vacancy on the Supreme Court 
open for a year. Think about that. Through World War I, through World 
War II, through huge tumult in this country, we always made sure we had 
a fully staffed Supreme Court.
  It would be unprecedented to deny a Supreme Court nominee fair 
consideration in the U.S. Senate. In the last 100 years, the Senate has 
taken action on every Supreme Court nominee regardless of whether the 
nomination was made in a Presidential year. It is now February, which 
gives us plenty of time to consider and confirm a nominee. Let's go to 
that next.
  People say: When will we have the time to get that done? I would 
submit that we do. We have hundreds of days before us. In fact, the 
Senate has taken an average of only 67 days. Let's make it easier: 2 
months--about 2 months. That is the average since 1975 from the date of 
the nomination to the confirmation vote--2 months. That means that if 
the President offers a nomination, say, in the month of March--that 
sounds like a good month to have a nominee--that nominee would receive 
a vote in the Senate by Memorial Day. There are our 2 months. And if we 
even wanted to add a little time on, we would certainly do it by the 
Fourth of July, which is a very good holiday for those who believe in 
the Constitution and in the words of the Constitution.
  Until we confirm a nominee, the Court is left with only eight 
Justices. A split decision will prevent the Supreme Court from making 
critical decisions and leave lower courts without a precedent to 
follow. A major responsibility of the Supreme Court is to resolve 
disagreements among lower courts. A failure of the President or the 
Senate to meet its constitutional obligations would cause the Supreme 
Court to be unable to fill its constitutional obligations.
  These Supreme Court Justices aren't elected directly; they have 
lifetime appointments. Their job is to be insulated from elections and 
politics, and that is why we have these strict and straightforward 
words in the Constitution that say that the President shall nominate 
someone for the job, and they also say that the Senate will advise and 
consent. We have those words in place in the Constitution, in that 
incredibly important document that guides us in this Chamber every 
single day, just for a situation such as this one, just for situations 
such as these.
  In closing, I remind my colleagues of the important work the people 
have sent us here to do. Yes, we have major disputes every day. That 
happens every day. We get into arguments about issues. There are 
political campaigns going on. But we have always at least followed the 
Constitution. That is what this is about today.
  As soon as we have a nominee, as soon as the President exercises his 
constitutional duty and puts someone in place, we should follow the 
Constitution and our longstanding traditions and the history of this 
country and uphold that duty. We should diligently consider the 
President's nominee to be the next Supreme Court Justice. As members of 
the Judiciary Committee, we must have the confirmation hearing. We must 
do our jobs.

  Thank you, Mr. President, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON. Mr. President, I am here to talk about Takata airbags, 
but I want to say to the Senator from Minnesota that she is so right 
on. The Constitution, article II, says that the President ``shall 
nominate'' and the Senate ``shall confirm.'' It doesn't say ``may'' or 
``wish.'' It says ``shall.'' It is a constitutional responsibility of 
our duties.
  Just do your job, U.S. Senate. Just do the job, and we will see, once 
the President comes forward with a nominee. Let's see. Are we going to 
have committee hearings? Let's see if we are going to have open and 
bipartisan discussion on the merits of the nominee that is put forth. 
Let's see if the Constitution is trashed or whether the Constitution is 
upheld in the process put out to us in the third branch of government. 
I thank the Senator from Minnesota.