[Congressional Record Volume 162, Number 29 (Wednesday, February 24, 2016)]
[Senate]
[Pages S969-S970]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Filling the Supreme Court Vacancy

  Mr. DURBIN. Mr. President, every Member of the Senate stands in the 
well of the Senate when they are elected, takes an oath of office. That 
oath of office, required by the Constitution, is our statement to not 
only the people we represent but to the Nation, that we will uphold and 
defend the Constitution of the United States.
  Article II, section 2 of that Constitution empowers the President. 
Those powers include the President's power to fill vacancies on the 
Supreme Court. It is not permissive language. The word ``shall'' can be 
found in this paragraph. It basically says that the President of the 
United States shall nominate, and by and with the advice and consent of 
the Senate, shall appoint judges of the Supreme Court.
  For the first time in the history of the United States of America, 
Senate Republicans are prepared to defy this clear statement of the 
U.S. Constitution. What an irony that filling the vacancy on the Court 
by the untimely death of Antonin Scalia--filling the vacancy on the 
Court of a man who prided himself throughout his judicial career as 
being what he termed an ``originalist,'' sticking to the strict letter 
of the law, as spelled out in the Constitution--in filling that 
vacancy, the Senate Republicans have basically decided to reach a new 
low; in fact, to make history in a very sad way. A seat on the U.S. 
Supreme Court lies vacant because of the death of Justice Scalia. The 
President has the constitutional obligation, as I have read, to name a 
nominee to fill that vacancy. Senate Republicans are now saying they 
will not even hold a hearing on that nominee.
  If the President sends a name--and he will--to the Senate to fill 
that vacancy, they have said they will not hold a hearing, they will 
not schedule a vote, and, listen to this, yesterday Senator McConnell 
said: I will not even meet with that person.
  This is a new low. Since the Senate Judiciary Committee started 
holding hearings on Supreme Court nominees a century ago, the Senate of 
the United States of America has never--never--denied a hearing to a 
pending Supreme Court nominee. It has never happened, but that is what 
Senate Republicans are saying they will do.
  This level of obstruction, of ignoring the clear language of the 
Constitution, is unprecedented, and it is dangerous. This goes beyond 
any single vote for any Supreme Court nominee. This is an abdication of 
the Senate's responsibility under article II, section 2 of the 
Constitution to provide advice and consent on Supreme Court 
nominations, which the President shall appoint and shall nominate.
  Senate Republicans want to keep the Supreme Court seat vacant for 
more than 1 year. They want this vacancy to continue for more than 1 
year. That will encompass two terms of the Supreme Court. This is 
demeaning to the institution of the Supreme Court, and unfair to 
millions of Americans who rely on that Court to resolve important legal 
questions.
  In the coming days, the President will name a nominee, as the 
Constitution requires him to do. Senate Republicans should meet their 
responsibility under the Constitution, do their jobs, and give the 
President's nominee a fair hearing and a vote.
  Yesterday, the Republican members of the Senate Judiciary Committee 
sent a letter to the majority leader, and here is what they said: 
``This Committee will not hold hearings on any Supreme Court nominee 
until after our next President is sworn in on January 20, 2017.''
  Why did they take this unusual position in defiance of the 
Constitution? They said: ``The presidential election is well underway. 
Americans have already begun to cast their votes. . . . The American 
people are presented with an exceedingly rare opportunity to decide, in 
a very real and concrete way, the direction the Court will take over 
the next generation.''
  This argument is specious. The American people have already voted; 
they voted to elect our President, Barack Obama, and they voted to 
elect 100 Senators who currently serve in this body. President Obama 
was elected to a 4-year term, and 11 months remain. The American people 
voted for each of us to do our jobs for as long as we serve in office. 
By a margin of 5 million votes, the American people have chosen the 
President. Did they elect the President for 3 years, or 3 years and 2 
months? No. They elected a President for 4 years, and this President's 
term continues until January 20, 2017.
  The Republicans conveniently ignore the obvious. The will of the 
American people was expressed in that election, and the election of 
Barack Obama as President of the United States empowers him under the 
Constitution to fill this vacancy with an appointment. They didn't vote 
in that election for us to sit on our hands for over a year while the 
Supreme Court twists in the wind and while the Republican Senators pray 
every night that President Donald Trump will somehow give America a 
different Supreme Court nominee. Not a single American, incidentally, 
has yet cast a vote for President of the United States--not one--in the 
next election, despite the statement of the Judiciary Committee 
Republicans that says otherwise.
  It is February of this year. The nomination conventions are scheduled 
for late July. The modern Supreme Court confirmation process has taken 
an average of 67 days. There is more than adequate time to hold a 
hearing on this nominee and get this done properly. All we need is for 
the Senate Republicans to do their jobs.
  Yesterday on the Senate floor, I urged my Republican colleagues not 
to duck a vote on the President's nominee. They could vote yes, they 
could vote no, but they shouldn't abdicate their constitutional 
responsibility for political advantage. I am amazed that my Republican 
colleagues now say that

[[Page S970]]

not only do they want to duck that vote, but they also want to avoid 
even having a hearing on the nominee. And they are afraid to even meet 
with this nominee for fear that maybe they might think he or she is a 
good nominee.
  Even more shockingly, the Republican leader and several Republican 
members of the Judiciary Committee said yesterday they would not even 
meet with the President's nominee. One of our colleagues in the Senate 
last night on television was asked pointedly or directly: If the 
President nominates someone from your State to the Supreme Court 
vacancy, are you saying you wouldn't meet with that person? My 
colleague on the other side of the aisle ducked the question. This is 
stunning.
  Remember, the President is obligated by article II, section 2 of the 
Constitution to send a nominee to the Senate. That is the process the 
Founding Fathers established. That is the President's responsibility. 
How can Senate Republicans refuse to even meet with the person selected 
under this constitutional process? How is that being faithful to the 
terms of the Constitution? How are Senate Republicans upholding and 
defending this Constitution by this evasive, historically unprecedented 
action?
  Sadly, it appears that Senate Republicans have calculated it is in 
their best political interests to keep the nominee out of the 
spotlight. They were hoping that, with this letter and by saying 
yesterday we will have nothing to do with it, they are going to turn 
out the lights on this issue. That is not what is going to happen. This 
issue is going to be there and remembered, and it is going to be 
recalled on the floor of the Senate repeatedly. They thought they could 
close down the government when Senator Cruz of Texas sat here for, I 
don't know how many hours, reading Dr. Seuss while we shut down the 
government, and they thought people would forget Senator Cruz shutting 
down the government; they didn't, and he is finding on this campaign 
trail that a lot of people have remembered that. The American people 
are not going to forget what Senate Republicans are trying to do with 
the Supreme Court.
  I have served on the Judiciary Committee for the hearings and 
confirmation votes of four of the eight sitting Supreme Court Justices. 
Let me state clearly that this Senator is more than happy to meet with 
the President's Supreme Court nominee, as I have on all such nominees--
Republican and Democrat alike--and I will consider that nominee on his 
or her merits, as I have always tried to do in the past.
  Yesterday, Senate Republicans also tried to deflect attention from 
their unprecedented obstruction by pointing to quotes from some 
Democrats years ago. But the record is clear: Democrats have never, 
never blocked a Supreme Court nominee from having a hearing. 
Republicans are breaking new ground with this obstructionism. The 
American people deserve better.
  The bottom line is there is no excuse for the Senate to fail to do 
its job. Once the President has named his nominee, the Senate must give 
that nominee a fair hearing and a timely vote. If the Constitution 
means anything to my colleagues on the other side of the aisle, they 
understand that what they are doing is unprecedented. It has never 
happened once in American history. We are now finding the 
obstructionism of Senate Republicans reaching a new low. They are 
ignoring the clear wording of our Constitution, which they have sworn 
to uphold and defend, and they are obstructing in a way that we have 
never seen before in the history of the United States. That is the 
reality--a reality that will not be lost on the American people.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. BARRASSO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.