[Congressional Record Volume 162, Number 29 (Wednesday, February 24, 2016)]
[Senate]
[Pages S977-S985]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. FRANKEN. Mr. President, I rise today to address the recent 
vacancy on the U.S. Supreme Court and to urge my colleagues to grant 
swift consideration of the President's eventual nominee.
  Make no mistake, the passing of Justice Antonin Scalia came as a 
great shock. Although Justice Scalia and I did not share a common view 
of the Constitution or of the country, I recognized that he was a man 
of great conviction and, it should be said, a man of great humor. My 
thoughts and prayers are with his family, his friends, his clerks, and 
his colleagues. But we must now devote ourselves to the task of helping 
to select his successor.
  The Constitution--so beloved by Justice Scalia--provides that the 
President ``shall nominate, and by and with the Advice and Consent of 
the Senate, shall appoint . . . Judges of the supreme Court.''
  Let us all remember that each and every Senator serving in this body 
swore an oath to support and defend that same Constitution. It is our 
duty to move forward. We must fulfill our constitutional obligation to 
ensure that the highest Court in the land has a full complement of 
Justices. Unfortunately, it would seem that some of my colleagues on 
the other side of the aisle do not agree, and they wasted no time in 
making known their objections.
  Less than an hour after the news of Justice Scalia's death became 
public, the majority leader announced that the Senate would not take up 
the business of considering a replacement until after the Presidential 
elections. ``The American people should have a voice in the selection 
of their next Supreme Court justice,'' he said.
  The only problem with the majority leader's reasoning is that the 
American people have spoken. Twice. President Barack Obama was elected 
and then reelected by a solid majority of the American people, who 
correctly understood that elections have consequences, not the least of 
which is that when a vacancy occurs, the President of the United States 
has the constitutional responsibility to appoint a Justice to the 
Supreme Court. The Constitution does not set a time limit on the 
President's ability to fulfill this duty, nor, by my reading, does the 
Constitution set a date after which the President is no longer able to 
fulfill his

[[Page S978]]

duties as Commander in Chief or to exercise his authority to, say, 
grant pardons or make treaties. It merely states that the President 
shall hold office for a term of 4 years, and by my count, there are in 
the neighborhood of 11 months left.
  If we were truly to subscribe to the majority leader's logic and 
extend it to the legislative branch, it would yield an absurd result. 
Senators would become ineffective in the last year of their terms. The 
28 Senators who are now in the midst of their reelection campaigns and 
the 6 Senators who are stepping down should be precluded from casting 
votes in committee or on the Senate floor. Ten committee chairs and 19 
subcommittee chairs should pass the gavel to a colleague who is not 
currently running for reelection or preparing for retirement. Bill 
introduction and indeed the cosponsorship of bills should be limited to 
those Senators who are not yet serving in the sixth year of their 
terms. If the majority leader sincerely believes the only way to ensure 
that the voice of the American people is heard is to lop off the last 
year of an elected official's term, I trust he will make these changes, 
but I suspect he does not. Rather, it seems to me that the majority 
leader believes the term of just one elected official in particular 
should be cut short, which begs the question, just how should it be 
cut? As I said, by my count, approximately 11 months remains in Barack 
Obama's Presidency. Now, 11 months is a considerable amount of time. It 
is sizeable. It has heft, but I wouldn't call it vast.
  Then again, there is a certain arbitrariness to settling on 11 
months. After all, it is just shy of a full year. Perhaps, in order to 
simplify matters, an entire year would be proper or maybe just 6 
months, half a year. It is a difficult decision. If only the American 
people had a voice in selecting precisely how much time we should shave 
off the President's term.
  Of course, now that I mention it, there is a way to give the American 
people a voice in this decision. The majority leader could propose a 
constitutional amendment. It would, of course, have to pass both Houses 
of Congress with a two-thirds majority, but that is not an 
insurmountable obstacle. Provided it clears Congress, the amendment 
would then bypass the President--which, in this case, would be very 
apt--and be sent to the States for their ratification. So if the 
majority leader truly wants the voters to decide how best to proceed, 
our founding document provides a way forward.
  Suggesting that the Senate should refuse to consider a nominee during 
an election year stands as a cynical affront to our constitutional 
system, and it misrepresents our history. The Senate has a long 
tradition of working to confirm Supreme Court Justices in election 
years. One need look no further than sitting Associate Justice Anthony 
Kennedy, a Supreme Court nominee appointed by a Republican President 
and confirmed by a Democratic Senate in 1988--President Reagan's last 
year in office--during an election year. So when I hear one of my 
colleagues say ``It's been standard practice over the last 80 years to 
not confirm Supreme Court nominees during a presidential election 
year,'' I know that is not true.
  I am not the only one who knows that is not true. The fact-checking 
publication PolitiFact recently observed that ``[s]hould Republican 
lawmakers refuse to begin the process of confirming a . . . nomination, 
it would be the first time in modern history.'' SCOTUSblog, an 
indisputable authority on all matters related to the Court, confirmed 
that the ``historical record does not reveal any instances [in over a 
century] of the . . . Senate failing to confirm a nominee in a 
presidential year because of the impending election.''
  The fact is that there is a bipartisan tradition--a bipartisan 
tradition--of giving full and fair consideration to Supreme Court 
nominees. Since the Judiciary Committee began to hold hearings in 1916, 
every pending Supreme Court nominee, save nine, has received a hearing. 
And what happened to those nine nominees? They were confirmed within 11 
days of being nominated.
  In 2001, during the first administration of President George W. Bush, 
then-Judiciary Committee Chairman Leahy and Ranking Member Hatch sent a 
letter to their Senate colleagues making clear that the committee would 
continue its longstanding, bipartisan practice of moving pending 
Supreme Court nominees to the full Senate, even when the nominees were 
opposed by a majority of the committee, but, regrettably, my colleagues 
on the other side of the aisle are leaving that long tradition behind.
  Yesterday, every Republican member of the Senate Judiciary Committee 
sent a letter to the majority leader vowing to deny a hearing to the 
President's eventual nominee. ``This committee,'' they wrote, ``will 
not hold hearings on any Supreme Court nominee until after our next 
President is sworn in on January 20th, 2017.'' This marks a historic 
dereliction of the Senate's duty and a radical departure not just from 
the committee's past traditions but from its current practices.
  I know that my good friend Chairman Grassley cares a great deal about 
maintaining the legacy of the Judiciary Committee and the propriety of 
its proceedings. Under his leadership, we have seen the committee put 
country before party and move consensus, bipartisan proposals. I had 
hoped Chairman Grassley would approach the task of confirming our next 
Supreme Court Justice with the same sense of fairness and integrity. I 
still hope that. But I was very disappointed to learn that yesterday 
Chairman Grassley gathered only Republican committee members in a 
private meeting where they unilaterally decided behind closed doors to 
refuse consideration of a nominee. The decision to foreclose even 
holding a hearing for a nominee to our Nation's highest Court is 
shameful, and I suspect the American people share that view.
  The Supreme Court is a central pillar of our democracy. The women and 
men who sit on that bench make decisions that touch the lives of every 
single American, regardless of party or political persuasion. Now the 
Senate must do the same. We must honor our solemn duty to uphold the 
Constitution and to ensure that Americans seeking justice are able to 
have their day in court before a full bench of nine Justices.
  I urge my colleagues to reject the impulse to put politics before our 
sworn duty to uphold the Constitution.
  I thank the Presiding Officer and yield the floor to my colleague 
from Utah.
  The PRESIDING OFFICER (Mr. Gardner). The Senator from Utah.
  Mr. LEE. Mr. President, Supreme Court Justice Antonin Scalia was an 
extraordinary man whose contributions to this country and the American 
people, whom he faithfully served from the bench, are so prodigious 
that it will take generations for us to fully comprehend our debt of 
great gratitude to him. His untimely, recent death is a tragedy, and 
his legacy is a blessing to friends of freedom throughout this country 
and everywhere.
  Justice Scalia was a learned student of history and a man who 
relished, perhaps more than any other, a spirited, lively debate, so it 
is fitting that his passing has sparked a conversation in America, a 
spirited conversation about the constitutional powers governing the 
appointment of Supreme Court Justices and the historical record of 
Supreme Court vacancies that happen to open up during a Presidential 
election year.
  This debate gives the American people and their elected 
representatives in the Senate a unique opportunity to discuss our 
Nation's founding charter and history at a time when our collective 
choices have very real consequences, so it is important that this 
debate proceed with candor, mutual respect, and deference to the facts. 
In that spirit, I wish to address and correct a few of the most 
pernicious errors, inaccuracies, fallacies, and fabrications we have 
heard from some of the loudest voices in this debate over the last few 
days.
  From the outset, I have maintained that the Senate should withhold 
its consent of a Supreme Court nomination to fulfill Justice Scalia's 
seat and wait to hold any hearings on a Supreme Court nominee until the 
next President, whether it is a Republican or a Democrat, is elected 
and sworn in. This position is shared by all of my Republican 
colleagues on the Senate Judiciary Committee, consistent with the 
Senate's powers in the appointment of Federal judges and supported by 
historical precedent.

[[Page S979]]

  In response, some of my colleagues on the other side of the aisle and 
many in the media have resorted to all manner of counterarguments, 
ranging from the historically and constitutionally inaccurate to the 
absurd, and in many cases, the claims made by some of my colleagues 
today flatly contradict their own statements from the past.
  I believe the plain meaning of the Constitution and the historical 
record are sufficiently clear to stand on their own as evidence that 
there is absolutely nothing unprecedented and absolutely nothing 
improper about the Senate choosing to withhold its consent of a 
President's nominee to the Supreme Court, so I would like to focus on 
one particular allegation offered by some of my colleagues on the other 
side of the aisle.
  With the letter and the spirit of the Constitution, as well as their 
own words standing against them, many have turned to fearmongering in a 
last-ditch effort to win the debate. They claim that leaving Justice 
Scalia's seat vacant until the next President nominates a replacement 
would somehow inflict a profound institutional injury on the Supreme 
Court by disrupting the resolution of this term's cases before the 
Court, a term including important cases on abortion, immigration, 
religious liberty, and mandatory union dues, among others, ensnaring 
the Court in endless gridlock with an evenly split eight Justices on 
the bench and leaving it short-staffed for an unprecedented and 
potentially prolonged period. Here, the doomsayers are on weak ground, 
indeed. Let's look at each of these claims in turn.
  First, is it true--as many have claimed--that the business of the 
Supreme Court will be obstructed or otherwise disrupted if the Senate 
withholds its consent of President Obama's nominee? Absolutely not.
  In recent history--in fact, since the nomination of Justice Scalia to 
the Supreme Court in 1986--it has taken more than 70 days on average 
for the Senate to confirm or reject a nominee after that nominee has 
been formally submitted by the President to the Senate for its advice 
and consent--more than 70 days on average. In many cases, it has taken 
far longer for the Senate to grant or withhold its consent. It took 
this body 108 days to reject Judge Robert Bork and 99 days to confirm 
Justice Clarence Thomas.
  Presuming the modern historic average would hold true for any future 
nominee, even if President Obama were to announce and refer a nominee 
to the Senate today for our advice and consent, the process would carry 
through until at least early May. But, significantly, the Supreme Court 
stops hearing cases in April, which means that even if President Obama 
were to announce a nominee today, right now, and even if the Senate 
were to confirm that nominee in a period of time consistent with 
historical standards, that individual would not be seated in time to 
hear and rule upon any of the cases that are currently on the Court's 
docket or any of the cases that are before the Court in this term. In 
other words, it would be historically anomalous for any of the cases 
currently pending before the Court to be decided this term by a nine-
member Supreme Court no matter what the Senate chooses to do regarding 
any future nominee.
  Let's put this in perspective. In this scenario--a scenario endorsed 
by Senate Democrats--it is highly unlikely that the nominee to fill 
Justice Scalia's seat would hear oral arguments until the beginning of 
October, literally just a few weeks before the Presidential election. 
This proves that the main argument made by President Obama and his 
allies is based on a myth. In their telling, the Senate's choice to 
withhold consent of a nominee would deny President Obama a Supreme 
Court Justice who will serve during his final year in the White House, 
but in reality, it is unlikely that the President's nominee will join 
the Supreme Court until the country is just weeks away from choosing 
President Obama's replacement. I think most Americans recognize the 
problem of a President having the ability to reshape the Supreme Court 
in his image on his way out of office, and that is exactly why the 
Senate is choosing to withhold its consent in this case. This is the 
right course not because of anything the Senate does or does not do and 
not because of anything the President does or does not do, it is simply 
a function of the unfortunate timing of Justice Scalia's death. Claims 
to the contrary are flatly contradicted by an empirical analysis of the 
Court's history.
  Second, the Senate's decision to withhold consent will not lead to an 
intractable impasse or hopeless gridlock, even if the eventual 
appointee were to miss the entirety of the next term, which starts in 
October of 2016 and runs until the end of June 2017.
  In each of its previous 5 terms, the current Court has decided only 
16 cases on average--or 23 percent of its caseload--by a 5-to-4 
majority, and Justice Scalia was 1 of the 5 Justices in the majority in 
those 5-to-4 cases only about half of the time on average. That means 
that the vacancy left by Justice Scalia would result in about eight 
cases out of dozens being decided by a 4-to-4 split. In fact, in the 
last term served by Justice Scalia, the last complete term, he was in 
the majority in only six of those 5-to-4 cases, and in the year before 
that, the preceding term, Justice Scalia's second to last term, he was 
in the majority in only five of the cases decided by a 5-to-4 majority. 
What does this mean? Well, it means that it is likely that the effect 
of his absence on the final vote and ultimate disposition of cases will 
be lower than even the average suggests. Instead of eight cases being 
decided by a 4-to-4 split in Justice Scalia's absence, it is likely to 
be closer to five or six, as it has been in the last two full terms of 
Justice Scalia's service on the Court.
  Let's not forget what should be obvious: The sky does not fall when a 
4-to-4 split occurs on the Supreme Court; rather, the decision of the 
lower court is left standing. And if there is the prospect of a 4-to-4 
split on a particularly salient matter, the Court always has the option 
of scheduling or rescheduling the hearing for a later time when the 
Court will have all nine Justices presiding and hearing the case.
  Finally, a vacancy on the Court lasting through the Presidential 
election season will have no greater effect on the Court's ability to 
decide cases than any number of instances in the past where the Court 
has had to decide matters with eight Justices or even fewer.
  As recently as the Court's 2010-to-2011 term, the Court had to decide 
over 30 cases with eight or fewer Justices, almost entirely as a result 
of recusals arising from Justice Kagan's nomination.
  Likewise, following the retirement of Justice Powell in 1987, the 
Court had to act on 80 cases with 8 or fewer justices. This was a 
result of Democratic opposition to Judge Bork and the eventual late-
February confirmation of Anthony Kennedy, coupled with dozens of 
recusals by Kennedy and other Justices later in that term.
  In the October term of 1945, the Court functioned as an eight-member 
body while Justice Robert Jackson was serving as a prosecutor in 
Nuremberg, acting on a full term's caseload without him. Tellingly, 
when Justice Jackson expressed concern about missing so many cases and 
actually considered returning early for that reason, Justice Felix 
Frankfurter wrote to encourage Justice Jackson to stay on as a 
prosecutor, stating that his absence was not ``sacrificing a single 
interest of importance.'' Compared to today, the Court had a larger 
workload and issued many more opinions during that term in which 
Justice Jackson was absent. This suggests that a vacancy of a similar 
duration as Jackson's full-term sabbatical would be even less damaging 
to the Court's functioning than the absence of Justice Jackson--an 
absence that, to reiterate, did not sacrifice ``a single interest of 
importance.''
  The next President's future nominee is unlikely to miss as many cases 
as Justices Kennedy or Jackson missed.
  These are the facts, Mr. President. They can't be ignored nor can 
they be wished away. If we are going to have a serious, honest debate 
about the vacancy left by Justice Scalia's tragic passing, we must 
proceed on the basis of these facts.
  Thank you, Mr. President.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mrs. SHAHEEN. Mr. President, since the beginning of our Nation, the 
U.S. Senate has maintained an important bipartisan tradition of giving 
fair consideration to Supreme Court nominees.

[[Page S980]]

Article II, section 2 of the Constitution is unambiguous about the 
respective duties and responsibilities of the President and the Senate 
when there is a Supreme Court vacancy. The Founders did not intend 
these roles to be optional or something to be disregarded. Article II 
also states that the President shall hold his office during the term of 
4 years, not 3 years or 3 years and 1 month, but 4 full years.
  The Constitution plainly says that it is the President's duty to 
nominate a Supreme Court Justice and it is the Senate's duty to provide 
advice and consent on that nomination. Throughout our history, Senators 
have done their constitutional duty by considering and confirming 
Supreme Court Justices in the final year of a Presidency. In fact, the 
Senate has done that 14 times, most recently in 1988, when the Senate 
confirmed Justice Anthony Kennedy, who was President Reagan's nominee 
to the Supreme Court. He sent that nomination over to the Democratic 
majority in this body. Almost 28 years ago exactly to the day in 
February of 1988, the Democratic majority in the Senate confirmed 
Republican President Ronald Reagan's judicial nomination, Anthony 
Kennedy, unanimously 97-0. They didn't debate whether it was a 
Presidential year and whether they could act. It was in the middle of a 
hard-fought election. It was not at all clear what the outcome of that 
election was going to be.
  Since 1975, the average length of time from nomination to a 
confirmation vote for the Supreme Court--that is the average length of 
time; sometimes it has taken longer and sometimes it has been shorter--
but since 1975, the average length of time has been 67 days because our 
predecessors in the Senate recognized how important it is for the 
Supreme Court to be fully functioning.
  Unfortunately, this week we are seeing this bipartisan tradition 
regarding the Court being put at risk. Yesterday we heard the majority 
leader say that if the President nominates a person to the Supreme 
Court--any person, no matter how superbly qualified--there will be no 
hearings and no vote. We even heard some Senators say they would refuse 
to meet with any potential nominee. I think that is very unfortunate.
  It is unfortunate for a number of reasons, probably first and 
foremost because the people of the United States expect us to work 
together here in Washington to do the job of the country--to do the 
jobs we were elected to do--and because the current President's term 
ends in January of 2017. That is more than 300 days from now. During 
that time, the Supreme Court will hear many important cases, but if the 
majority in the Senate has their way, the Court will do so without a 
full roster of Justices.
  As Brianne Gorod of the Constitution Accountability Center has said, 
and I quote:
  The consequences of the Supreme Court being without all nine justices 
for so long can hardly be overstated. Most significant, a long-standing 
vacancy would compromise the Court's ability to perform one of its most 
important functions, that is, establishing a uniform rule of law for 
the entire country.
  Every Senator here has sworn to support and defend the Constitution--
full stop. That is the oath we have taken. Our oath doesn't say to 
uphold the Constitution most of the time or only when it is not a 
Presidential election year or only when it is convenient for us or only 
when we like the ideology that is being presented to us. Our oath says 
to uphold and defend the Constitution every day, no matter what the 
issue is that comes before us. The American people expect us as 
Senators to be faithful to our oath. They also expect us to do our jobs 
regardless of whether it is a Presidential election year.
  I believe we should respect our oath of office. I believe we should 
do the job we were sent here to do by the American people. I believe we 
should follow the Constitution. As former Justice Sandra Day O'Connor 
said last week, and I quote again, ``I think we need somebody [on the 
Supreme Court] now to do the job, and let's get on with it.''
  I say, let's get on with it.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CARDIN. 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. CARDIN. Mr. President, I join the Nation in offering my heartfelt 
condolences to the family and friends of Justice Scalia, who was an 
Associate Justice of the U.S. Supreme Court. For more than three 
decades, Justice Scalia devoted himself to the rule of law and public 
service at the highest levels. Whether you agreed or disagreed with his 
decisions, there is no debate about Justice Scalia's profound impact on 
the Supreme Court. He served his country with great honor.
  I was privileged to serve as a member of the Judiciary Committee when 
I first joined the Senate. I participated in confirmation hearings for 
judicial nominees for both President Bush and President Obama, 
including the hearings for Justices Sonia Sotomayor and Elena Kagan.
  The Constitution spells out quite clearly what happens when a vacancy 
occurs on the Supreme Court. Article II, section 2, of the Constitution 
states that the President ``shall nominate, and by and with the Advice 
and Consent of the Senate, shall appoint . . . Judges of the supreme 
Court.''
  The American people twice elected President Obama to 4-year terms in 
office. Their voices have been heard very clearly. Elections have 
consequences, and President Obama must carry out the constitutional 
responsibilities and duties of his office by nominating a successor for 
Justice Scalia. The President is simply doing the job that the American 
people elected him to do. The President doesn't stop working simply 
because it is an election year. He has more than 300 days left in 
office, as do the Senators who will face the voters this November. 
Congress should not stop working, either, in this election year and 
should earn their full paycheck.
  So my message is clear. Do your job. It is our responsibility to take 
up the nominations the President will submit to us. And I think the 
American people will ultimately demand that the Senate do its job and 
not threaten to stop working simply to coddle and pander to the most 
extreme fringe elements of its base, as was done when the government 
shut down a few years ago with the flirtation of a default on the full 
faith and credit of the U.S. Government.
  Just as the President is carrying out his constitutional duties, so 
should the Senate. My colleagues in the Senate took an oath to support 
the Constitution. It is only February, leaving the Senate plenty of 
time before the elections to consider a nomination that President Obama 
will make in the coming weeks.
  I find it disgraceful that my Republican colleagues would try to 
obstruct the nomination before the nominee has even been named. Our job 
as Senators is to examine the qualifications of the nominee for the 
position. The Senate should get to work once President Obama makes his 
nomination, in a process that usually takes around two months.
  If you look over the history of nominations that have been made by a 
President on Supreme Court nominees in the amount of time the Senate 
has considered those nominations, the average is 2 to 3 months. Let me 
remind you, we have almost a year left in this term of Congress. There 
is plenty of time. The Senate Judiciary Committee has historically 
reported nominees to the floor even if the nominee did not garner a 
majority vote in the committee. And then let the Senate work its will 
to either confirm or reject the President's nominee.
  The tradition of the Senate is to allow each Senator to vote yea or 
nay on a nomination to the Supreme Court of the United States. That has 
been the tradition of the Senate. Of course, every Senator has the 
right to vote no. Senators were elected for 6-year terms by the 
citizens of their State and have the right and obligation to vote. 
President Obama was elected by the people of the United States for a 4-
year term and has the right and obligation to nominate.
  History has shown that when the roles were reversed and the Democrats 
held the majority in the Senate, Supreme Court and judicial nominees 
for

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Republican Presidents were given hearings and up-and-down votes 
regardless of when the vacancy occurred. Justice Kennedy was confirmed 
to the Supreme Court in the last year of President Ronald Reagan's 
final term in 1988. Other examples of Presidential election-year 
confirmations include Justice Murphy in 1940, Justice Cardozo in 1932, 
and Justice Brandeis in 1916. And the Democratic-controlled Senate 
confirmed numerous judicial nominees of President George W. Bush 
throughout his final year in office, including nearly a dozen judges in 
September 2008, just weeks before the election of President Obama.
  While I might have picked different judges as a Senator, I voted to 
confirm the vast majority of President Bush's judicial nominations in 
his final year in office. I will continue to carry out my 
constitutional responsibilities that I undertook when I became Senator 
and swore to support the Constitution. In my view, Justice Scalia would 
expect nothing less than for the President and the Congress to follow 
the letter and spirit of the Constitution, our Nation's most 
fundamental legal document. Justice Scalia wrote a 2004 opinion about 
the importance of having all nine Justices on the Supreme Court. He 
stated that without a full complement of Justices, the Court--I am 
quoting from Justice Scalia--``will find itself unable to resolve the 
significant legal issues'' in pending cases and that a vacancy 
``impairs the functioning of the Court.''

  Justice Scalia understood the importance to have nine Supreme Court 
Justices. Are we really going to allow there to be a vacancy for that 
ninth seat for a year?
  Former Justice Rehnquist, when he was an Associate Justice of the 
Supreme Court in 1972, wrote that the prospect of affirming lower court 
judgments by an equally divided court was ``undesirable'' because ``the 
principle of law presented by [each] case is left unsettled.'' When 
there is a circuit split, Justice Rehnquist continued, ``the prospect 
of affirmance by an equally divided Court, unsatisfactory enough in a 
single case, presents even more serious problems where companion cases 
reaching opposite results are heard together here. . . . [A]ffirmance 
of each of such conflicting results by an equally divided Court would 
lay down `one rule in Athens, and another rule in Rome' with a 
vengeance.''
  What Justice Rehnquist was saying is when we have different appellate 
court decisions--one circuit ruling one way and another circuit ruling 
another way--they come to the Supreme Court, we have conflicting 
interpretations, and we have the Supreme Court of the United States to 
resolve that difference.
  What happens if there is a 4-to-4 vote? We have different rules in 
the Fourth Circuit than in the Third Circuit. That is why we have a 
Supreme Court. And for a year-plus we are going to say we are not going 
to allow the full complement to be there?
  I am also privileged to serve as the ranking member of the Senate 
Committee on Foreign Relations and the ranking member and former chair 
of the Helsinki Commission. I must tell my colleagues, as I meet with 
heads of foreign governments, parliamentarians and judges overseas, I 
feel great pride in that America has created independent judges where a 
neutral fact-finder decides the case based on the law and the facts and 
cannot be fired for making a decision that offends the government or 
the politically powerful. I really do believe the Supreme Court and 
Federal judiciary are some of the crown jewels of our American system 
of government and the envy of the world. That is why I am so disgusted 
and disappointed today with the majority's attempt to abdicate their 
responsibilities as Senators and as Americans by not doing their job 
and simply obstructing the operation of good governance for partisan 
political purposes. I say that because the Republican members of the 
Judiciary Committee have written a letter saying they are not even 
going to take up this nomination. There will not even be any hearings.
  Do your job. Our job is to consider a nomination that is submitted by 
the President.
  What the Republicans are effectively trying to do is to temporarily 
shrink the Supreme Court from nine to eight Justices and shorten the 
term of the President from 4 years to 3 years. That is not in the 
Constitution. This is disgraceful and indefensible. Frankly, it reminds 
me of the arguments Republicans used in 2013 when they accused 
President Obama of trying to pack the court when they announced they 
would not support further nominees to the U.S. Court of Appeals for the 
District of Columbia Circuit. No, President Obama was not trying to 
pack the court by changing the number of seats on the court. He was 
merely nominating individuals to existing vacancies on the court that 
were authorized by Congress by an enacted statute. That is the 
President's responsibility.
  Let me remind my colleagues that Congress has the authority to pass a 
statute that is signed into law by the President or by overriding his 
veto. What Congress cannot and the Senate should not do is purport to 
shrink the size of the court, be it the Supreme Court or district court 
or circuit court, by simply refusing to even consider a nominee until 
the next President takes office.
  If this decision by the Republicans is allowed to stand, it would 
create an artificial vacancy for over a full year, spanning two terms 
of the Court, which would be unprecedented since the Civil War. We 
recall that after the last century, Supreme Court nominees have 
received timely hearings and considerations by the Senate Judiciary 
Committee and the full Senate.
  It matters if the Supreme Court is not fully operational and 
gridlocks in 4-to-4 ties. Under that scenario, the division of the 
lower court stands, even when there is a split among the circuits where 
only the Supreme Court could and should clarify the law. This will lead 
to more uncertainty, litigation, wasted time and resources, and 
ultimately delay and deny justice for the American people.
  It would be a great tragedy--and potentially do long-term damage to 
the Supreme Court and the independent judiciary--if the Republican 
strategy of delay and obstruction prevails. I urge my colleagues: Do 
your job. Do your job. When the President submits the nomination for 
the Supreme Court vacancy created by the death of Justice Scalia, 
schedule a timely hearing and establish a reasonable schedule for the 
Senate and each of its 100 Members to vote yea or nay on the person the 
President submits as a nominee for the Supreme Court. That is our 
responsibility. We need to do our job.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. MARKEY. Mr. President, former Chief Justice Warren Burger once 
explained the historical significance of the U.S. Constitution as 
follows. He wrote that ``in the last quarter of the 18th century, no 
nation in the world was governed with separated and divided powers 
providing checks and balances on the exercise of authority by those who 
governed.''
  The Chief Justice went on to call the Constitution ``a remarkable 
document--the first of its kind in all of human history.''
  Chief Justice Burger was right. The Constitution is remarkable, and 
it is remarkable not only for what it says but how it says it.
  In some places the Constitution speaks in poetry, like the Preamble 
that begins with ``We the People of the United States,'' and talks of 
``a more perfect Union'' and ``the Blessings of Liberty.''
  In other places, the Constitution is simple prose, but given the 
importance of every single word in the text of the Constitution, the 
Founding Fathers wrote in plain, concise, and understandable language.
  That clarity can be found in the advice and consent clause of article 
II, section 2. Its words could not be clearer. It simply states that 
the President of the United States ``shall nominate, and by and with 
the Advice and Consent of the Senate, shall appoint Ambassadors, other 
public Ministers and Consuls, and Judges of the supreme Court.''
  There is no ambiguity there. It is not an invitation to 
reinterpretation. The President's obligation under the Constitution is 
crystal clear. He shall nominate someone to fill a vacancy on the 
Supreme Court.
  President Obama has stated that he will fulfill his obligation and 
send the Senate an eminently qualified nominee to fill the vacancy 
created by the unfortunate passing of Justice Antonin Scalia.

[[Page S982]]

  When President Obama does that, it will be the Senate's turn to 
fulfill its obligation under the Constitution.
  The text of the Constitution on the Senate's responsibility is 
similarly clear. The Senate is to provide its advice and consent. Let 
me repeat that. The Senate is to provide its advice and consent.
  Advice and consent does not mean the Senate disregards the 
Constitution and ignores a nomination to the Supreme Court. It is 
advice and consent, not avoid and contempt.
  The advice and consent clause is not the constitutional equivalent of 
Roger Maris's home run statistics. There is no asterisk in the 
Constitution that directs readers to small print that says ``except in 
an election year.'' There is no fine print in the Constitution that 
says the Senate is to give its advice and consent except in the last 
year of a President's term.
  Despite the clear constitutional instruction on how the executive and 
legislative branches are to handle a vacancy on the Supreme Court, the 
Republicans on the Judiciary Committee yesterday unilaterally decided 
they would not hold a hearing on a Supreme Court nominee to fill 
Justice Scalia's seat until after the upcoming Presidential election. 
This partisan decision to obstruct is a drastic departure from long-
established practice and procedure in filling Supreme Court vacancies. 
The Senate has routinely confirmed Supreme Court Justices in the final 
year of a Presidency. In fact, it has happened more than a dozen times, 
most recently with the confirmation of Justice Anthony Kennedy during 
the last year of Ronald Reagan's second term as President. 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 
election year.
  So the American people now have to deal with two vacancies: one on 
the Supreme Court and the other in the judgment of Senate Republicans 
because they seem willing to go to unprecedented lengths to stop this 
constitutionally mandated process from moving forward.
  Republican Senators' reading words into the Constitution to reach the 
result they want is no different from the so-called judicial activism 
on the bench they routinely decry.
  The Republicans would rather shirk their constitutional 
responsibility than let President Obama appoint another Justice to the 
Court. They would rather deprive the country of a fully functioning 
Supreme Court than fulfill their constitutional duty, not just for the 
remainder of this term but for the next term of the Supreme Court as 
well.
  Now, why is that? Well, because a Justice of the Supreme Court has 
only one vote, but a single seat on the Court and a single vote that 
comes with it can carry enormous significance. We need only look at 
this divided Supreme Court's recent 5-to-4 decisions to understand why 
Republicans prefer a vacancy on the Supreme Court. With only eight 
justices instead of nine, the Court's decisions can deadlock with a 4-
to-4 vote. A tie vote leaves in place the lower court decision that has 
been appealed to the Supreme Court. A 4-to-4 deadlock can have far-
reaching consequences.
  Take Bush v. Gore, the 2000 decision that stopped Florida's vote 
recount in the 2000 Presidential election. Bush v. Gore was decided by 
a 5-to-4 vote. If a seat on the Supreme Court had been vacated, 
resulting in a 4-to-4 vote, then the outcome of that election could 
have been different.
  So that is pretty much the consequence here. It is going to have, 
without question, some impact on how these decisions are going to be 
made, but it is without any full comprehension of what that change 
could be, only because nine human beings are involved, but there is a 
responsibility that we have in the Senate to ensure that we, in fact, 
have a full Supreme Court.
  The President shall nominate. That is without question the duty he 
has. We shall provide advice and consent. That is our duty. We don't 
have to give consent at the end of the day. We can have a vote on the 
Senate floor to determine whether someone is, in fact, going to be 
confirmed, but we have that constitutional responsibility.
  There is still ample time for the President to submit a nomination, 
for the Judiciary Committee to hold hearings on it, and for the full 
Senate to vote on it.
  The U.S. Constitution remains a remarkable document. Let us treasure 
it, not twist it. Let us respect it, not run from it. Let us fulfill 
our constitutional obligations and have a hearing on the President's 
nominee and a vote by the Senate. In other words, to the U.S. Senate: 
Do your job. It is in the Constitution. There is no way you can run 
from a clear interpretation of what the Constitution requires us to do 
once the President has nominated a new candidate for the Supreme Court. 
There are direct instructions for the President in the Constitution and 
there are direct instructions for us in the Senate.
  Let us hope that after the President nominates a candidate, that this 
body deliberates, listens to all the testimony, and then has a vote on 
whether that person is qualified to serve on the Supreme Court, but the 
only way that is going to happen is if this body does its job. So we 
ask the Members of the majority to ensure that happens.
  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. BLUMENTHAL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Lee). Without objection, it is so ordered.
  Mr. BLUMENTHAL. Mr. President, I am here today to urge this body to 
fulfill its constitutional duty and take action on the Supreme Court 
nominee who shortly will be submitted by President Obama. I come here 
not only as a U.S. Senator but also as a former Federal prosecutor, a 
U.S. attorney in Connecticut from 1977 to 1981, a former State attorney 
general for 20 years, and a veteran of four arguments before the U.S. 
Supreme Court. I am also here as a former law clerk to Justice Harry 
Blackmun, and I share with the Presiding Officer the experience of 
having had that supremely important and formative experience, and, of 
course, it shapes my view as well of the Court.
  I have immense respect and awe for the position and power and 
eminence of the U.S. Supreme Court, its role in our democracy, and its 
history of scholarship and public service. I have the same admiration 
for Justice Antonin Scalia, and I take this moment to remember his 
uniquely American life.
  As the son of an immigrant, he was a dedicated public servant, a 
gifted writer, and a powerful speaker. I heard him speak on a number of 
occasions and argued before him in the Court in a number of memorable 
exchanges. His sense of humor and his quickness of wit and insight 
remain with me now. As all of my colleagues will attest, he dedicated 
his life to serving the public, which can be demanding and difficult at 
times, but his life showed, as we know, that the difficulties and the 
demands are well worth the rewards. My thoughts are with his wife 
Maureen and his entire family.
  My personal view, speaking only for myself, is that one way to honor 
Justice Scalia is to adhere to the Constitution, to follow its words, 
which are very explicit on the topic of nominating and confirming a 
Supreme Court Justice and which give us the role of advising and 
consenting after the President has nominated. I hope we will fulfill 
our constitutional duty to advise and consent--to do our job, 
literally, to do our job as we were elected and took an oath of office 
to do. That is what we are paid to do--our job as prescribed by the 
Constitution. I fundamentally reject the notion that the Senate's 
refusal to act, as laid out in no uncertain terms by my Republican 
colleagues, fulfills this obligation. In fact, the abdication of 
responsibility through this rejection is disrespectful to that document 
and to the Court itself.
  President Obama has indicated that he is currently engaged in a 
thoughtful and deliberative process, working to select a nominee with 
the intellect and integrity that will persuade the American public and 
hopefully also the Senate to support his suggestion. His nomination 
would allow the Supreme Court to function again with the nine members 
who are essential to its deliberation.

[[Page S983]]

  The conclusions my colleagues advance during such a process will, of 
course, be to each of them to decide. I will be, in fact, among the 
most exacting and demanding of our colleagues who question that nominee 
in a hearing, who seek answers in screening and researching the 
expertise and experience of that person. In no way should the Judiciary 
Committee, on which I serve, or the U.S. Senate, where we all serve, 
act as a rubberstamp. No way. No rubberstamp. We must advise as well as 
consent, and advising means being demanding and careful. But I think we 
have an obligation to go through that process. We can't just say, sight 
unseen, no. We can't say that we are going to leave it to the next 
elected Senate or the next elected President. We have been elected and 
he has been elected to do our job.
  The Supreme Court must have a full complement of Justices to 
effectively address some of the most complex issues and consequential 
legal challenges our Nation faces today. Put aside the merits of each--
whether it is immigration or affirmative action, women's reproductive 
rights, voting rights--decisions are needed. The lack of decision has 
consequences, just as elections have consequences.
  Obstruction has consequences, too, and we cannot afford to weaken the 
Federal judiciary's capacity for effective governance. We can't allow a 
manufactured crisis in the Senate to plunge another branch of 
government into gridlock and to plague the judiciary with the same 
partisan paralysis that is so detested by the American people. In fact, 
the rejection of our constitutional responsibility to do our job would 
epitomize the gridlock and partisan contention that America finds so 
abhorrent today. Like my colleagues, I go around the State of 
Connecticut, and what people say to me more commonly than anything else 
is ``Why can't you do your job? Why can't you get stuff done?'' Let's 
get this done.
  Statements by Majority Leader McConnell and Chairman Grassley, as 
well as a number of my other colleagues, have indicated that President 
Obama's nominee to the highest Court in the land should not even be 
considered, but turning our backs on that constitutional obligation to 
act would be equivalent to shutting down the government. It is of 
exactly the same kind of consequence. It may not be as far-reaching in 
its immediate effect, but it has the same long-term consequences, which 
are not merely to prevent decisions and actions from happening--
necessary decisions and actions--but also to undermine credibility and 
faith and trust in our government.
  When it comes to the Congress or the President, maybe that 
credibility is of lesser importance, but it is a chief asset of our 
judiciary. The Supreme Court of the United States has no armies or 
police force. It commands the Nation's respect through its credibility. 
It enforces obeyance by virtue of that credibility.
  This posture by my Republican colleagues threatens to drag a vital, 
nonpartisan institution into the morass of procedural gamesmanship and 
electoral mudslinging--the kind of game playing and gamesmanship that 
has so disillusioned and dismayed Americans more broadly.
  As I have discussed this process with the people of Connecticut, I 
have heard outrage over this attempt to hamstring the Supreme Court, 
which looks like the recent, similarly illogical process of shutting 
down the government.
  If my Republican colleagues want to reject a nominee, that is their 
right. After a hearing, they can vote no. They may have reason, and 
those reasons may be subjective or fact-based and objective. But to 
simply deny any consideration--even a meeting with a nominee--is stark 
obstructionism. It is an extreme version of the phenomenon that has 
frozen this body for much too long.
  The majority campaigned in 2014 on restoring law and getting things 
done. They promised Americans everywhere that the new Senate majority 
would usher in an end to gridlock on Capitol Hill. We made some 
progress--too slow, too little--but moving in the right direction will 
be forestalled, if not doomed, by this obstructionism, and these 
promises would be broken if the Senate refuses to act.
  At this critical time, we cannot hold the highest level of an entire 
branch of government hostage because of political gamesmanship. That is 
not what the American people elected us to do, and it is not what the 
American people deserve. Doing so would dishonor the bipartisan 
tradition of providing a hearing and a vote for a Supreme Court 
nominee, which is our constitutional obligation and has been followed 
by past Senates.
  Even when a nominee during President Reagan's Presidency was 
nominated 14 months before the election and even though the vote came 
during the last year of that President's term in office, Justice 
Kennedy was confirmed. We should do the same. Why not? There is plenty 
of time between now and then to give deliberate due consideration to 
the President's nominee.
  I hope that the outrage and outcry from the American people will 
persuade my colleagues to reconsider, reflect, and reverse this 
disastrous course. In fact, I believe they will relent because this 
course is dangerous to the Court, damaging to our Nation, and 
ultimately destructive to our democracy.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent to speak for 
up to 20 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WHITEHOUSE. Mr. President, we are here on this conflict we have 
over a Supreme Court nominee, which has turned into a considerable, 
unprecedented fuss, I believe, for a fairly simple reason. The 
elephant, so to speak, in the room is that the Court has become a 
political actor under Chief Justice Roberts. The rightwing bloc on the 
Court delivered politically because it had a 5-to-4 majority. Now their 
rightwing majority is gone, and Republicans are predictably upset.
  Justice Frankfurter admonished:

       But it is not the business of this Court to pronounce 
     policy. It must observe a fastidious regard for limitations 
     on its own power, and this precludes the Court's giving 
     effect to its own notions of what is wise or politic.

  Well, that was then. The five-judge bloc on the Roberts Court, of 
which Justice Scalia was an essential part, systematically and 
predictably pronounced policy in favor of three things: No. 1, 
conservative ideology; No. 2, the welfare of big corporations; and No. 
3, the electoral well-being of the Republican Party. And people 
noticed. Linda Greenhouse wrote that it is ``impossible to avoid the 
conclusion that the Republican-appointed majority is committed to 
harnessing the Supreme Court to an ideological agenda.'' Other noted 
Court watchers, such as Norm Ornstein and Jeffrey Toobin, agree. As 
Jeffrey Toobin noted, the pattern of decisions ``has served the 
interests, and reflected the values, of the contemporary Republican 
party.'' Columnist Dana Milbank observed of a recent decision that 
``the Roberts Court has found yet another way to stack the deck in 
favor of the rich.'' The Court has become so political that Justices 
Scalia and Thomas have attended the Koch brothers' secretive annual 
political conference. Just this week, Ms. Greenhouse wrote, ``[T]he 
conservative majority is permitting the court to become an agent of 
partisan warfare to an extent that threatens real damage to the 
institution.''
  It is not just the Court watchers who have noticed; less than one-
third of Americans have confidence in the Supreme Court. Americans 
massively oppose its Citizens United decision--80 percent against, with 
71 percent strongly opposed. Most tellingly, by a ratio of 9 to 1, 
Americans now believe the Court treats corporations more favorably than 
individuals. Even conservative Republicans agree, by a 4-to-1 margin, 
that this Court treats corporations more favorably than individuals.
  Let's take a look at the Court's decisions in these three areas: 
election politics, corporate interests, and the conservative social 
agenda.
  In elections decisions, the Court's Republican-appointed majority 
always seems to come down on the side that helps the election prospects 
of the Republican Party.
  The Voting Rights Act, for example, protects minority access to the 
ballot,

[[Page S984]]

and in States that had long histories of discriminating against 
minority voters, it required preclearance of voting restrictions. In 
the 5-to-4 Shelby County decision, the Republican-appointed Justices 
gutted that preclearance requirement. Predictably, the result was 
almost immediate enactment across many States of voter-suppression 
laws. The Washington Post described, for instance, the ``surgical 
precision with which North Carolina Republicans approved certain forms 
of photo IDs for voting and excluded others.'' Texas, for another 
instance, allowed gun permits for voting but not State university IDs. 
And even where these voter-suppression laws ultimately fail in court, 
Republicans still gain the benefit of fewer Democrats in the electorate 
while they are litigated.
  The conservative judges' decisions on gerrymandering are a second 
example. ``Gerrymandering'' is named after Massachusetts Governor 
Elbridge Gerry and his efforts to shape the district of a State senator 
he needed to protect. A clever modern variant of gerrymandering has 
emerged--bulk gerrymandering--which looks at the whole congressional 
delegation of a State. This tactic isolates Democrats into small, 
supersaturated Democratic districts so that majority-Republican 
districts can be created out of the remainder of the State.
  By manipulating the districts this way through its so-called REDMAP 
project, Republicans delivered congressional delegations that didn't 
reflect the State's popular vote, over and over. For instance, when 
Pennsylvania voters went to the polls in 2012, Democratic votes for 
Congress outnumbered Republican votes by a little over 80,000. 
Pennsylvania also reelected President Obama that year and our 
colleague, Democratic Senator Bob Casey. But Pennsylvania at that 
ballot sent a House delegation to Congress of 5 Democrats and 13 
Republicans--more votes for Democrats, more Republicans in the 
delegation by 13 to 5.
  This was not just a Pennsylvania fluke. In 2012, Ohio voted for 
Barack Obama for President and returned our Democratic colleague 
Sherrod Brown to the Senate but sent 12 Republicans to Congress and 
only 4 Democrats. Wisconsin voted for Obama in 2012 and elected 
progressive Senator Tammy Baldwin to the Senate but sent five 
Republicans and only three Democrats to Congress.
  The Republican organization behind REDMAP bragged of this 
achievement. I will quote REDMAP's memo:

       [A]ggregated numbers show voters pulled the lever for 
     Republicans only 49 percent of the time in congressional 
     races, [but] Republicans enjoy a 33-seat margin in the U.S. 
     House seated yesterday in the 113th Congress, having endured 
     Democratic successes atop the ticket and over one million 
     more votes cast for Democratic House candidates than 
     Republicans.

  This gerrymandering ran wild because in a Supreme Court case called 
Vieth v. Jubelirer, four Republican Justices announced that they would 
no longer question whether gerrymandering interfered with any 
constitutional voting rights. One, Justice Kennedy, left a glimmer of 
light, but the practical effect was to announce open season for 
gerrymandering. As the American Bar Association's publication on 
redistricting has noted, ``The Court's recent decisions appear to give 
legislators leeway to preserve partisan advantage as zealously as they 
like when drawing district lines.'' In practice, gerrymandering of 
Congress squarely benefited Republicans.
  A third example is campaign finance decisions, the most noticeable 
being Citizens United, but a constellation of decisions surrounds 
Citizens United, beginning with Justice Powell's 1978 opinion in First 
National Bank of Boston v. Belloti. The careful work of Republican 
appointees on the Court over many years to open American politics to 
corporate spending has conferred obvious political advantage to the 
Republican Party, and, as many news outlets reported, it was 
Republicans who cheered the Citizens United decision.
  So, in elections, it is three for three in favor of the Republican 
Party.
  Turning from elections to the conservative agenda on social issues, 
such as religion and abortion and gun control, let's start with the 
District of Columbia v. Heller decision, a Second Amendment decision in 
which this same five-man bloc created, for the first time in our 
history, an individual right to keep firearms for self-defense. As 
recently as 1991, this doctrine was such a fringe theory that it was 
publicly described by retired Chief Justice Warren Burger as ``one of 
the greatest pieces of fraud, I repeat the word `fraud,' on the 
American public by special interest groups that I have ever seen in my 
lifetime.'' That was the theory which five on the Court adopted. As one 
author noted, ``Five Justices on the Supreme Court were able to 
reinterpret, by some standards radically, the Second Amendment's right 
to keep and bear arms as a personal, not a collective right in 
Heller.''
  At the wall separating church and state, the bloc of five chipped 
steadily away: Christian crosses in public parks, Federal tax credits 
funding religious schools, Christian prayer at legislative meetings. As 
constitutional scholar Erwin Chemerinsky summed it up: ``Rather than 
obliterating the wall separating church and state all at once, the 
Roberts Court's opinions are dismantling it brick by brick.''

  Four decades ago, Roe v. Wade recognized a wall of privacy in the 
Constitution between the government and a woman's private medical 
decisions. In this context, the court has long required State laws 
barring late-term abortions to have an exception to protect the health 
of the mother. Then the Roberts Court upheld a ban on the procedure 
that had no exception for the health of the mother.
  As Justice Ginsburg stated in her dissent: ``[T]he Act and the 
Court's defense of it cannot be understood as anything other than an 
effort to chip away at a right declared again and again by this Court--
and with increasing comprehension of its centrality to women's lives.''
  If the conservative win rate in the Court is striking, the corporate 
one is even more so. A recent study found the Roberts Court more 
favorable to business interests than its predecessors, with all five 
members of the recent rightwing bloc among the top 10 most business-
friendly judges in the last 65 years. Chief Justice Roberts was No. 1 
and Justice Alito No. 2.
  Studies showed the Roberts Court following the legal position of the 
U.S. Chamber of Commerce, which is a de facto organ of the National 
Republican Party, 69 percent of the time, up from 56 percent during the 
Rehnquist Court and 43 percent during the Burger Court. Connect the 
dots. The Republicans are the party of the corporations, the judges are 
the appointees of the Republicans, and the judges are delivering for 
the corporations. It is being done in plain view.
  Many Chamber victories were significant, such as making employment 
discrimination harder to prove, letting manufacturers and distributors 
fix minimum prices for retail goods, letting mutual funds advisers 
include misstatements made by others in the documents they prepare for 
investors, and even Hobby Lobby, where the Court put the religious 
rights of corporate entities over the rights of employees.
  Big corporations hate being hauled into court and having to face 
juries, and the five Republican appointees protected them by raising 
pleading standards for victims, letting companies push disputes into 
corporate-favored arbitration, restricting Americans' ability to press 
cases of large-scale wrongdoing in class actions, making it more 
difficult for workers to hold employers accountable for workplace 
harassment, and making it harder for consumers with serious side 
effects to sue the drug companies.
  Now before the Court is a case the five-man bloc has pursued for some 
time. It was expected that the five would use it to deal a significant 
blow to the political and economic clout of unions, a great boon for 
the big corporations. It also looked like the five were teeing up for 
the fossil fuel industry, a big victory against the President's Clean 
Power Plan.
  There was a lot at stake in that fifth vote. There was a lot that was 
delivered because of that fifth vote. At 4 to 4, the circuit court 
decision below

[[Page S985]]

stands. At 4 to 4, the challenged regulation ordinarily prevails.
  I will close with the big sockdolager: Citizens United. It was once 
the opinion of the U.S. Supreme Court that ``to subject the state 
governments to the combined capital of wealthy corporations [would] 
produce universal corruption.'' No more. The five judges behind 
Citizens United opened the floodgates for unlimited anonymous corporate 
spending in elections. They found that corporate corruption of 
elections was near impossible, and they caused a tsunami of slime--to 
use a phrase that I borrow--that we have seen in recent election 
cycles. Such a brute role for big corporations in our American 
Government would shock the Founding Fathers who foresaw no important 
role in our Republic for the corporations of the time.
  To unleash that corporate power in our elections, the five 
conservative justices had to go through some remarkable contortions. 
They had to reverse previous decisions where the Court had said the 
opposite. They had to make up facts that were then predictably and are 
now demonstrably wrong. They had to create a make-believe world of 
independence and transparency in election spending that present 
experience belies, and they had to maneuver their own judicial 
procedures to forestall a factual record belying the facts they were 
making up.
  It was a dirty business with a lot of signs of intent, and it has 
produced evil results that we live with every day. All of this--
Republican election advantage, corporate welfare, the conservative 
social agenda--is because the activists, corporatists, and rightwing 
bloc had a fifth vote. That bloc of five did more for the far right, 
for the Republican Party, and for its corporate backers than all of the 
Republicans in the House and Senate have been able to do. They 
delivered. Now it is 4 to 4 and that advantage is gone; hence the panic 
on the Republican side; hence the departure from plain constitutional 
text.
  Imagine any other constitutional duty of the President that he failed 
to do that would not cause uproar and outrage. There would be nobody on 
the floor here because everybody would have run off to FOX News to get 
their talking headshot in and talk about what a terrible thing the 
President had done by violating his constitutional duty. Well, the 
President has a constitutional duty--he shall nominate.
  They are in a political pickle, but the Constitution doesn't care 
about the politics. From the Constitution's point of view, the politics 
are just too darn bad. The Constitution directs the President to make 
the appointment, and he should do his job. The Constitution gives the 
Senate the job of advice and consent to the President's nominee. We 
should do our job just as the Constitution provides.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Perdue). Without objection, it is so 
ordered.

                          ____________________