[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,
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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.