[Congressional Record Volume 162, Number 29 (Wednesday, February 24, 2016)]
[Senate]
[Pages S971-S974]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Filling the Supreme Court Vacancy

  Ms. HIRONO. Mr. President, our Republican colleagues have decided 
that the Senate should not hold a hearing or vote on any Supreme Court 
nominee this year. The reason? It is an election year. That is a 
breathtakingly candid but utterly irresponsible reason for the Senate 
not to do its job. That decision may not surprise those who have 
followed the Senate in recent years, as our Republican colleagues have 
time and again chosen to obstruct President Obama's agenda.
  We can disagree on legislation, we can disagree on policies, we can 
certainly disagree on judicial nominations, but the idea that the 
Senate should not take any action on a Supreme Court vacancy is 
unprecedented.
  In the last 100 years, the Senate has taken action on every Supreme 
Court nominee whether it is an election year or not. The Senate has not 
only taken action, but the Senate has confirmed more than a dozen 
Supreme Court Justices in the final year of a Presidency. In fact, a 
Democratic Senate confirmed Justice Anthony Kennedy in the final year 
of President Reagan's term. Yet roughly 9 months before the next 
election, the Republican position is that the Senate should not do its 
job because 11 months from now, we will have a new President. I ask 
you, what has that got to do with us doing our jobs?
  Under the Republican timeline, the Supreme Court will be left with 
only eight Justices for over a year. The last time it took so long for 
the Senate to fill a vacancy on the Court was during the Civil War. The 
rationale that the Senate should not act because of an upcoming 
election is not only stunning, but I think most Americans would agree 
is absurd. In what other workplace can employees announce that they 
don't plan to fulfill their responsibilities for 9 months and still get 
paid? But that is exactly what Republicans are saying to the American 
people.

  We work for the American people. The American people elect Senators, 
Representatives, and Presidents. Through elections, the people shape 
the direction of our country.
  While Republicans may want to forget it, in 2012 the people elected 
President Obama to a full 4-year term. That term doesn't end for nearly 
a year. His responsibilities as President don't stop because a 
Republican Senate says so.
  The Constitution requires a President to nominate someone to fill a 
vacancy on the Supreme Court. The Constitution requires the Senate to 
provide advice and consent on the President's nominee. That is our job 
as Senators.
  The President hasn't nominated anyone to fill the current Supreme 
Court vacancy. When he does, no Senator is required to vote for that 
nominee, but what is required is for the Senate to fulfill its 
constitutional duties. The President's nominee deserves a hearing and a 
vote. No excuses. Let's do our job.
  Mr. President, I wish to now turn to another subject.
  (The remarks of Ms. Hirono pertaining to the submission of S. Res. 
373 are printed in today's Record under ``Submitted Resolutions.'')
  Ms. HIRONO. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Sullivan). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, yesterday it was my privilege to say a few 
words honoring Justice Antonin Scalia, known to his friends as 
``Nino,'' a man whose intellect, wit, and dedication to our 
Constitution have served our country for decades. I am pleased that 
others have said appropriate words honoring his memory and the many 
ways he helped strengthen our constitutional self-government and our 
democracy.
  As we know, the Constitution gives the Senate an equal role in 
deciding who eventually is to serve on the Supreme Court of the United 
States.

[[Page S972]]

President Obama called me and other members of the Judiciary Committee 
yesterday, saying he intends to exercise his constitutional authority, 
and I recognize his right to make that nomination. But not since 1932 
has the Senate, in a Presidential election year, confirmed a Supreme 
Court nominee to a vacancy that arose in that Presidential election 
year. And it is necessary to go even further back--I believe to the 
administration of Grover Cleveland in 1888--to find an election-year 
nominee who was nominated and confirmed under a divided government, 
such as we have now.
  So I found it very curious that some of our colleagues across the 
aisle are effusive in their criticism of our decision to withhold 
consent until we have a new President and in effect say this ought to 
be a choice not just confined to the 100 Members of the Senate and the 
President but to the American people.
  We are not saying--we are not foreclosing the possibility that a 
member of one party or another party would be the one to make that 
nominee. This isn't a partisan issue. This is about the people having a 
chance to express their views and raising the stakes and the visibility 
of the Presidential election to make the point that this isn't just 
about the next President who will serve 4 years, maybe 8 years; this 
will likely be about who will serve the next 30 years on the Supreme 
Court of the United States.
  I am going to remind our colleagues of some of the things they have 
said in the past for which they have so roundly criticized us. People 
understand when there are differences of opinion. It is a little harder 
to understand hypocrisy when you have taken just the opposite position 
when it suited your purposes in the past to the position you take 
today. So let me just be charitable and say maybe they have just 
forgotten.
  For example, the minority leader, Senator Reid of Nevada, the 
Democratic leader, said on May 19, 2005, when George W. Bush was 
President of the United States:

       The duties of the Senate are set forth in the U.S. 
     Constitution. Nowhere in that document does it say the Senate 
     has a duty to give Presidential appointees a vote.

  That was Senator Reid. I agree with him. That is exactly right, but 
that is not the position he appears to be taking today.
  The President has every right to nominate someone, but the Senate has 
the authority to grant consent or to withhold consent. And what I and 
the other members of the Judiciary Committee on the Republican side 
said yesterday in a letter to the majority leader is that we believe 
unanimously--all the Republicans on the Senate Judiciary Committee--
that we should withhold consent, exercising a right and an authority 
recognized by Senator Reid in 2005.
  I have read some of the press clips. People recoil in mock horror: 
Well, you are not even going to have a hearing? You are not even going 
to meet with the President's proposed nominee?
  Well, that is right, for a very good reason--because it is not about 
the personality of that nominee. So it would be pretty misleading for 
us to take the same position that Senator Reid has taken and then to 
say: Well, we are going to go through this elaborate dance of having 
courtesy meetings, maybe even having a hearing, when we have already 
decided--as Senator Reid acknowledged is the right of the Senate--not 
to bring up this President's nominee for a vote. And not to preordain 
who that next nominee will be, whether they will be nominated by a 
Republican or Democratic President--we don't know what the outcome of 
the Presidential election is going to be. But this is too important for 
the Congress and for the Senate to be stampeded into a rubberstamp of 
President Obama's selection on the Supreme Court as he is heading out 
the door--a decision that could well have an impact on the balance of 
power on the Supreme Court for the next 30 years.
  I am not through with my charts.
  The next Democratic leader in the Senate, Senator Schumer--first, I 
guess you could call this the Reid standard. We call it the Reid rule 
and the Schumer standard. That rolls off the tongue better.
  So this is what Senator Schumer said 18 months before President 
George W. Bush left office. We are only looking at, what, 10 or 11 
months until President Obama leaves. In 2007, Senator Chuck Schumer 
said: ``[F]or the rest of this President's term. . . . We should 
reverse the presumption of confirmation.''
  I, frankly, don't know what he is talking about. The Constitution 
doesn't talk about a presumption of confirmation. But it is pretty 
clear to me that he wants a presumption that the nominee will not be 
confirmed for the next 18 months.
  Senator Schumer, one of the Democratic leaders, said: ``I will 
recommend to my colleagues that we should not confirm a Supreme Court 
nominee except in extraordinary circumstances.''
  So what we are doing is what Senator Reid and Senator Schumer 
advocated back when it was convenient and served their purposes way 
back when. They are now taking a different position because, of course, 
their interests are different. They want to make sure President Obama 
gets a chance to nominate and the Senate confirm President Obama's 
nominee, who will serve for perhaps the next quarter of a century or 
more on the Supreme Court. But it is pretty clear that the Senate is 
not bound to confirm a Supreme Court nominee or even hold a vote.
  Finally, I wish to point out--we will call it the Reid rule, the 
Schumer standard, and the Biden benchmark.
  This is what the Vice President of the United States, Joe Biden, said 
in 1992 when he was chairman of the Senate Judiciary Committee. He gave 
a long speech, of which this is an excerpt. He said: ``[T]he Senate 
Judiciary Committee should seriously consider not scheduling 
confirmation hearings on the nomination until after the political 
campaign season is over.'' He went on to say: ``[A]ction on a Supreme 
Court nomination must be put off until after the election campaign is 
over.''
  That is the Biden benchmark--the Reid rule, the Schumer standard, and 
the Biden benchmark.
  I read a statement from the Vice President that he issued after he 
saw that this old news clip and his statement had been made public. He 
quite conveniently said this was ``not an accurate description of my 
views on the subject.'' Well, I think the words are very clear. I think 
what he might have said is ``These are no longer my views on the 
subject'' because, of course, he would like President Obama to be able 
to make that nomination.
  So I wish to reject this myth that many of our Democratic colleagues 
are spreading that what we are doing here and now is somehow 
unprecedented. Quite the contrary. What we are doing is what the 
Democrats' top leadership has advocated in the past. What do they think 
we are? They think we are going to abide by a different set of rules 
than they themselves advocated? How ridiculous would that be? I could 
not explain that to my constituents back home in Texas. If I were going 
to say: Well, the Democrats can apply one set of rules, but then when 
the Republicans are in the majority, the Republicans must apply a 
different set of rules--well, the fact is, the rule book has been 
burned by the Democrats, and what we are operating under is the status 
quo they advocated back in 1992, 2005, and 2007.
  The Senate has every right under the Constitution not to have a 
hearing, and we shouldn't go through some motions pretending like we 
are or that this is really about the personality of whomever the 
President nominates. I have confidence that the President will nominate 
somebody who he thinks is qualified to be on the Supreme Court. I would 
point out, though, that this nominee will not be confirmed. I don't 
know many leading lawyers, scholars, and judges who would want to be 
nominated for the U.S. Supreme Court to a seat that President Obama 
will never fill.
  So during this already very heated election year--and the election is 
already underway. Democrats are voting in Democratic primaries, and 
Republicans are voting in Republican primaries and caucuses. The 
election is already underway, and the Supreme Court can function in the 
vast majority of cases with eight members. It frequently does anyway 
because most cases are not decided 5 to 4; most cases are decided on a 
consensus basis.
  But let's say, for the six or so cases in which Justice Scalia was a 
deciding vote on a 5-to-4 case last year--if there

[[Page S973]]

is a deadlock, those cases can simply be held over until the next year 
when there is a new Justice or the Court can come up with some other 
way to dispose of it as it sees fit. That frequently happens. For 
example, Justice Kagan was Solicitor General of the United States. She 
was recused from and could not sit on cases that she handled as an 
advocate for the U.S. Government once she got to the Supreme Court. So 
the Court operated with eight Justices for a long time because of 
Justice Kagan's recusal. Similarly, Justice Anthony Kennedy served on 
the Ninth Circuit Court of Appeals. Once he got to the Supreme Court of 
the United States, he couldn't then sit on those cases and decide them 
once as a circuit court judge and another time as a Supreme Court 
Justice. He recused, which means there were eight Justices to decide 
those cases. That is not extraordinary; that is not uncommon. And it is 
not going to paralyze the Supreme Court of the United States from doing 
its job. It has all the tools it needs at its disposal to handle these 
cases as it sees fit--either to dismiss them as improvidently granted, 
to hold them over if they are truly deadlocked, or to find some other 
perhaps more narrow basis upon which to decide the case, which would 
command a five-vote majority with eight members of the Court.

  So Mr. President, I would like our colleagues to come out here and 
explain this apparent contradiction in the position they took in 2007, 
2005, and 1992. Because if they can't explain that, then it looks to me 
like this is pure hypocrisy--holding Republicans, when we are in the 
majority, to a different standard than they themselves were willing to 
embrace when they were in power.
  As I said, people may not understand a lot of the nitty-gritty 
details of this, but they do have a strong sense of fairness and 
evenhandedness, and they do smell hypocrisy and see it when it is right 
before their eyes.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. HEITKAMP. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. HEITKAMP. Mr. President, I come to the floor today with what I 
think is a pretty simple message--a message the American people have 
been delivering to me and the people of North Dakota and which reflects 
exactly why I wanted to come to Washington, DC--which is that Congress 
needs to do its job. Whether it is legislating on WOTUS or making sure 
we are moving appointments properly or taking votes that may make some 
of us uncomfortable, that is our job. That is why the American 
taxpayers pay us. So I come today to say: Congress, do your job. 
Senate, do your job.
  Every day families across this country go to work and fulfill their 
responsibilities and obligations. They do their jobs to put food on the 
table for their family, and they pay their bills. Imagine a 
construction worker in North Dakota telling his boss he didn't want to 
do his job for the rest of the year until conditions are probably more 
favorable. He might get a good laugh. He might be told to go back to 
work. If he was serious, he wouldn't have a job very long.
  Everyone here knows American workers can't go to their jobs and just 
announce: I don't want to do that today. They can't just say: I am not 
going to do my job for the rest of the year. I am going to wait to find 
out who might be the new boss. That is not how it works for the 
American people, and it is certainly not how it should work for the 
Senate.
  In many ways, I think it is an embarrassment that some of my 
colleagues would not only ask the President not to do his job--a job 
our Constitution instructs him to do--but they would also shirk their 
own duties to provide advice and consent to the President simply 
because it is not a good political time to do it.
  It says something pretty terrible about Congress if the Senate now is 
making determinations about how a popularly elected President, 
regardless of political party--regardless of whether that President is 
popular in this Chamber or not--is no longer allowed to perform the 
duties of that office and nominate and receive a vote on the Supreme 
Court nominee of his choosing.
  It is a disappointing day when some Senators will tell the President: 
Don't even bother because we will not even consider or even talk to 
your nominee. This is before the President has even announced or named 
a nominee. It is particularly frustrating to those of us who really 
want the Senate to work that some Senators are willing to hamper the 
functioning of yet another branch of our Federal Government simply to 
play politics, with the hope that those politics will benefit one 
party--to maintain and possibly take control of the other two branches 
of government.
  I don't think anyone can dispute the facts. The Supreme Court 
considers some of the most critical issues facing our country, and the 
American people deserve a fully functioning Court. To insist the Court 
go through potentially two terms without a full slate of Justices is an 
abdication of our responsibility as Senators. That responsibility is to 
make sure that America's three branches of government are fully 
functioning.
  Just yesterday, we heard that our colleagues are not even going to 
entertain the thought of a hearing before the Judiciary Committee for 
any nominee the President puts forward. I don't know how to explain 
that decision. I don't know how one can say that for the next 10 months 
that doesn't matter. I don't know how to explain that to people back in 
North Dakota.
  In the last 100 years, the full Senate has taken action on every 
pending Supreme Court nominee to fill a vacancy, regardless of whether 
the nomination was made in a Presidential election year. According to 
CRS--Congressional Research Service--since 1975 the average number of 
days from nomination to final Senate confirmation is 67 days or just 
over 2 months.
  Since committee hearings began in 1916, every pending Supreme Court 
nominee has received a hearing, except nine nominees who were all 
confirmed within 11 days. In addition to holding hearings on the 
nominations, the Senate Judiciary Committee has a longstanding 
bipartisan tradition of sending to the full Senate all pending nominees 
to the Supreme Court for a Supreme Court vacancy, even when the 
majority of the committee may not have supported that nominee.
  If, in fact, this Supreme Court vacancy is held open until the next 
President makes the nomination, that will mean it is vacant for well 
over a year. Not since the Civil War--not since the Civil War--has the 
Senate taken longer than 1 year to fill a Supreme Court vacancy.
  An extended period of time with only eight members of the Supreme 
Court sitting would delay or prevent justice from being served. There 
are American citizens across the country who need decisions from the 
Court on a variety of issues. In fact, what we have done is we have 
elevated the circuit courts--the courts that have made the decisions 
that are currently pending--to the position of the Supreme Court of the 
United States, denying access to those claimants one way or the other--
whether the court agreed with them or the court disagreed with them in 
the circuit courts--denying them access to that final appeal, to that 
Supreme Court decision.
  So I simply want to say: Let's do our job. Let's give the nominee a 
hearing. Let's vote in committee. Let's all do our job to vet the 
candidates. Let's not prejudge this. Let's do the responsible thing and 
vote yes or no. Let's take a look at the candidate to be nominated, and 
let's get a fully functioning Supreme Court.
  I want to close with just one reminder. The last time we went through 
a very contentious hearing was the hearing for Justice Thomas, and I 
think my colleague from Washington, who is on the floor, well remembers 
that, as do a lot of people here remember that. I want to remark that 
Justice Thomas was sent to this floor without a positive vote out of 
committee. But his nomination was sent to the floor, and the nomination 
of Justice Thomas, at the urging of then-majority leader Mitchell, was 
not filibustered. So probably the most contentious nominee in my 
lifetime certainly--and it certainly raised some very interesting 
gender issues--did not even get filibustered.

[[Page S974]]

  Let's do our job. Let's do the work the people sent us here to do. 
Let's vet this candidate, whoever it might be, and let's move forward 
so that every person who has a case pending before the Supreme Court or 
will have a case pending before the Supreme Court is given access to 
justice by providing a fully functioning Supreme Court.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I ask unanimous consent to speak on 
behalf of the nomination before the vote for 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Mr. President, the role of the FDA Commissioner is 
central to the health and safety of every family and community 
nationwide, from a dad making his daughter's peanut butter sandwich in 
the morning to a patient headed into an operating room. I know this is 
a nomination we all take very seriously.
  After careful review, I believe Dr. Califf's experience and expertise 
will allow him to lead the FDA in a way that puts patients and families 
first and upholds the highest standards of patient and consumer safety. 
Dr. Califf has led one of our country's largest clinical research 
organizations, and he has a record of advancing medical breakthroughs 
on especially difficult-to-treat illnesses.
  He has a longstanding commitment to transparency in relationships 
with industry and to working to ensure academic integrity. He has made 
clear he will continue to prioritize independence at the FAA as the 
Commissioner and always put science over politics. His nomination 
received letters of support from over 128 different physician and 
patient groups.
  He earned the strong bipartisan support of the members of the HELP 
Committee. There is a lot the FDA needs to get done in the coming 
months, including building a robust postmarket surveillance system for 
medical devices, making sure families have access to nutritional 
information, putting all of the agency's tools to work to stop tobacco 
companies from targeting our children, and playing a part in addressing 
the epidemic of opioid abuse that is hurting so many communities so 
deeply.
  I believe Dr. Califf will be a valuable partner to Congress in taking 
on these challenges and the many others the FDA faces. I am here to 
encourage my colleagues to join me in supporting this nomination. I 
look forward to continued work with all of the Members on ways to 
strengthen health and well-being for the families and communities we 
all serve.
  I yield back my time.
  The PRESIDING OFFICER (Mr. Sasse). Under the previous order, the 
question is, Will the Senate advise and consent to the Califf 
nomination?
  Mrs. MURRAY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Tennessee (Mr. Corker), the Senator from Texas (Mr. Cruz), 
the Senator from Wisconsin (Mr. Johnson), and the Senator from Florida 
(Mr. Rubio).
  Mr. DURBIN. I announce that the Senator from Missouri (Mrs. 
McCaskill), the Senator from Vermont (Mr. Sanders), and the Senator 
from Virginia (Mr. Warner) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 89, nays 4, as follows:

                       [Rollcall Vote No. 25 Ex.]

                                YEAS--89

     Alexander
     Baldwin
     Barrasso
     Bennet
     Blunt
     Booker
     Boozman
     Boxer
     Brown
     Burr
     Cantwell
     Capito
     Cardin
     Carper
     Casey
     Cassidy
     Coats
     Cochran
     Collins
     Coons
     Cornyn
     Cotton
     Crapo
     Daines
     Donnelly
     Durbin
     Enzi
     Ernst
     Feinstein
     Fischer
     Flake
     Franken
     Gardner
     Gillibrand
     Graham
     Grassley
     Hatch
     Heinrich
     Heitkamp
     Heller
     Hirono
     Hoeven
     Inhofe
     Isakson
     Kaine
     King
     Kirk
     Klobuchar
     Lankford
     Leahy
     Lee
     McCain
     McConnell
     Menendez
     Merkley
     Mikulski
     Moran
     Murkowski
     Murphy
     Murray
     Nelson
     Paul
     Perdue
     Peters
     Portman
     Reed
     Reid
     Risch
     Roberts
     Rounds
     Sasse
     Schatz
     Schumer
     Scott
     Sessions
     Shaheen
     Shelby
     Stabenow
     Sullivan
     Tester
     Thune
     Tillis
     Toomey
     Udall
     Vitter
     Warren
     Whitehouse
     Wicker
     Wyden

                                NAYS--4

     Ayotte
     Blumenthal
     Manchin
     Markey

                             NOT VOTING--7

     Corker
     Cruz
     Johnson
     McCaskill
     Rubio
     Sanders
     Warner
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table and the President 
will be immediately notified of the Senate's action.

                          ____________________