[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
[[Page S981]]
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.
____________________