[Congressional Record Volume 162, Number 30 (Thursday, February 25, 2016)]
[Senate]
[Pages S1022-S1029]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. GRASSLEY. Mr. President, yesterday the minority leader came to 
the floor to disparage the work of the Senate Judiciary Committee and 
also disparage the work of the Senate as a whole. And, of course, as he 
does from time to time, he launched into a personal attack against me. 
Now, that is OK. I don't intend to return the favor. I love Senator 
Reid. I don't want to talk about the nuclear option and the tremendous 
damage that did to the Senate, not to mention the years and years that 
Democratic Senators had to endure his leadership without even being 
able to offer an amendment. There is at least one Democratic Senator, 
who was defeated in the last election, who never got a chance to get a 
vote on an amendment during the entire 6 years he was in the Senate.
  We all know that is how some people act when they don't get their own 
way, but childish tantrums are not appropriate for the Senate. I think 
if my friend Senator Biden had been in the Chamber yesterday, he would 
have said--as we have heard him say so many times--``that is a bunch of 
malarkey.''
  I didn't come to the floor today to talk about the minority leader. 
However, I did want to follow up on my remarks from earlier this week 
on the Biden rules. Now, in fairness, Senator Biden didn't just make 
these rules up out of thin air. His speech, back in 1992, went into 
great historical detail on the history and practice of vacancies in 
Presidential election years. He discussed how the Senate handled these 
vacancies and how Presidents have handled and should handle them. Based 
on that history and a dose of good common sense, Senator Biden laid out 
the rules that govern Supreme Court vacancies arising during a 
Presidential election year, and of course, he delivered his remarks 
when we had a divided government, as we have today, in 1992.
  Now, the Biden rules are very clear. My friend from Delaware did a 
wonderful job of laying out the history and providing many of the sound 
reasons for these Biden rules, and they boil down to a couple 
fundamental points. First, the President should exercise restraint and 
``not name a nominee until after the November election is completed.'' 
As I said on Monday, President Lincoln is a pretty good role model for 
this practice. Stated differently, the President should let the people 
decide. But if the President chooses not to follow President Lincoln's 
model but instead, as Chairman Biden has said, ``goes the way of 
Fillmore and Johnson and presses an election-year nomination,'' then 
the Senate shouldn't consider the nomination and shouldn't hold 
hearings. It doesn't matter ``how good a person is nominated by the 
President.'' Stated plainly, it is the principle, not the person, that 
matters.
  Now, as I said on Monday, Vice President Biden is an honorable man 
and he is loyal. Those of us who know him well know this is very true, 
so I wasn't surprised on Monday evening when he released a short 
statement defending his remarks and of course, as you might expect, 
defending the President's decision to press forward with a nominee. 
Under the Constitution, the President can do that. Like I predicted on 
Monday, Vice President Biden is a loyal No. 2, but the Vice President 
had the difficult task of explaining today why all the arguments he 
made so cogently in 1992 aren't really his view.
  It was a tough sell, and Vice President Biden did his best Monday 
evening, but I must say that I think Chairman Biden would view Vice 
President Biden's comments the same way he viewed the minority leader's 
comments yesterday. He would call it like he sees it and as we have so 
often heard him say: It is just a bunch of malarkey. Here is part of 
what Vice President

[[Page S1023]]

Biden said on Monday. It is a fairly long quote.

  ``Some critics say that one excerpt of a speech is evidence that I do 
not support filling a Supreme Court vacancy during an election year. 
This is not an accurate description of my views on the subject. In the 
same speech critics are pointing to today, I urge the Senate and the 
White House to overcome partisan differences and work together to 
ensure the Court function as the Founding Fathers intended.''
  That doesn't sound consistent with all of those Biden rules I shared 
with my colleagues on Monday. So we ask: Is it really possible to 
square Chairman Biden's 1992 election-year statement with Vice 
President Biden's 2016 election-year statement? Was Chairman Biden's 
1992 statement really just all about greater cooperation between the 
Senate and the White House? When Chairman Biden said in 1992 that if a 
vacancy suddenly arises, ``action on a Supreme Court nomination must be 
put off until after the election campaign is over,'' was he simply 
calling for more cooperation? When he called for withholding consent 
``no matter how good a person is nominated by the President,'' was he 
merely suggesting the President and the Senate work together a little 
bit more? When he said we shouldn't hold hearings under these 
circumstances--was that all about cooperation between the branches?
  Since we are talking about filling Justice Scalia's seat, it seems 
appropriate to ask: How would he solve this puzzle? I suppose he would 
start with the text. So let us begin there.
  In 1992, did Chairman Biden discuss cooperation between the branches? 
Yes, in fact, he did. So far, so good for Vice President Biden, but 
that can't be the end of the matter because that doesn't explain the 
two vastly different interpretations of the same statement. Let us look 
a little more closely at the text. Here is what Chairman Biden said 
about cooperation between the branches: ``Let me start with the 
nomination process and how the process might be changed in the next 
administration, whether it is a Democrat or a Republican.''
  Remember, again, I emphasize that was during the 1992 election year. 
We didn't have to search very long to unearth textual evidence 
regarding the meaning of Chairman Biden's words in 1992. Yes, he shared 
some thoughts about how he believed the President and Senate might work 
together, but that cooperation was to occur ``in the next 
administration''--in other words, after the Presidential election of 
1992, after the Senate withheld consent on any nominee ``no matter how 
good a person is nominated by the President.''
  So the text is clear. If you need more evidence that this is an 
accurate understanding of what the Biden rules mean, look no further 
than a lengthy Washington Post article 1 week prior. In that interview 
he made his views quite clear. He said: ``If someone steps down, I 
would highly recommend the president not name someone, not send a name 
up.'' And what if the President does send someone up?--``If [the 
President] did send someone up, I would ask the Senate to seriously 
consider not having a hearing on that nominee.''
  Specifically, my friend Chairman Biden said: ``Can you imagine 
dropping a nominee after the three or four or five decisions that are 
about to be made by the Supreme Court into that fight, into that 
cauldron in the middle of a presidential [election] year?''
  Chairman Biden went on: ``I believe there would be no bounds of 
propriety that would be honored by either side. . . . The environment 
within which such a hearing would be held would be so supercharged and 
so prone to be able to be distorted.''
  At the end of the day, the text of Chairman Biden's 1992 statement is 
very clear. So, in 2016, when he is serving as a loyal No. 2 to this 
President, Vice President Biden is forced to argue that the Biden rules 
secretly mean the exact opposite of what they say. Ironically, that is 
a trick Justice Scalia taught us all to recognize and to reject on 
sight. We know we should look to the clear meaning of his text, as 
Justice Scalia taught us. This was not a one-off comment by Senator 
Biden. It was a 20,000-word floor speech forcefully laying out a 
difficult and principled decision. It relied on historical precedent. 
It relied upon respect for democracy. It relied on respect for the 
integrity of the nomination process. There is no doubt what Senator 
Biden meant.
  Of course there is a broader point, and I hope in the next several 
months we concentrate on his broader point. That is this. Words have 
meaning. Text matters. Justice Scalia devoted his adult life to these 
first principles. Do the American people want to elect a President who 
will nominate a Justice in the mold of Scalia to replace him? Or do 
they want to elect a President Clinton or Sanders who will nominate a 
Justice who will move the Court in a drastically more liberal decision? 
Do they want a Justice who will look to the constitutional text when 
drilling down on the most difficult constitutional questions or do they 
want yet another Justice who, on those really tough cases, bases 
decisions on ``what is in the Judge's heart,'' as then-Senator Obama 
famously said.
  It comes down to this. We have lost one of our great jurists. It is 
up to the American people to decide whether we will preserve his 
legacy.
  More importantly, do you want a Justice who follows the text of the 
Constitution? Do you want a Justice who follows the text of the law?
  Or, do you want a Justice who makes decisions based on his or her 
``heart''? This is a debate we should have. This is a debate I hope we 
will have. This is a debate I hope will be part of the three or four 
national presidential debates between Nominee Clinton or Sanders on one 
side, and whomever the Republicans nominate on the other side. The 
American people should have this debate. And then we should let the 
American people decide.
  I yield the floor.
  The PRESIDING OFFICER. The assistant Democratic leader.
  Mr. DURBIN. Mr. President, I will thank my colleague from Iowa. I 
hoped to get a chance to speak to him personally about another matter, 
but I will call him from the floor afterward. We will get in touch. 
Senator Hatch is here. I don't want to delay the proceedings of the 
Senate, but I would like an opportunity to respond on this issue that 
was raised by Senator Grassley.
  Senator Grassley of Iowa is my friend. Politicians say that sometimes 
and mean it, and say it sometimes and don't mean it. I mean it. We have 
become friends as neighboring States and sharing a lot of plane rides 
together, serving on the same committee, serving in the same body for a 
number of years, and I respect him very much. We have different points 
of view on many things, but we found common agreement on many other 
things. So I do respect him when I say that at the outset as I respond 
to his remarks.
  What is this about? This is about the passing of Justice Scalia and 
whether his seat on the Supreme Court will be filled, and if it will be 
filled, who will do it and when. The first place for us to turn when it 
comes to asking questions is the one document, the only document, that 
matters, the U.S. Constitution. It is this document that we literally 
all swore to uphold and defend, every one of us, Democrat and 
Republican. It is this document that is explicit, not making a 
suggestion but really spelling out the responsibilities when it comes 
to a vacancy on the Supreme Court, and it is article II section 2. 
Article II, section 2 says that the President ``shall nominate, and by 
and with the Advice and Consent of the Senate, shall appoint . . . 
Judges of the supreme Court.'' Shall.
  It is our responsibility under this Constitution to do this. It is 
amazing to me in the history of this Republic, guided by this great 
document, we have reached a point in the year 2016 where those simple 
words, directions in the Constitution, are being challenged and ignored 
by the Republican majority because, you see, there has never--underline 
the word never--been a moment in history when the Senate has refused to 
extend a hearing to a Supreme Court nominee until this moment. There 
has never been a moment in history, never--underline that word--when 
the Senate has refused a vote on a Supreme Court nominee.
  I can't say never, but it is been more than 150 years since we have 
allowed a vacancy on the Supreme Court to go on for more than a year, 
as the Republicans in the Senate are determined to do here. That 150 
years goes back to the Civil War. So I would say to my colleague from 
Iowa, you are about to

[[Page S1024]]

make history if you stand by this decision. If you decide the Senate 
Judiciary Committee will not even entertain a nomination to fill the 
Scalia vacancy on the Supreme Court, it will be the first time in the 
history of the U.S. Senate--the first. If the Senate Republican 
leadership makes the decision that even if a nominee is sent they will 
never allow a vote, it will be the first time in the history of the 
United States of America. That is why this is such a definitive issue. 
That is why the position taken by the Senate Republican majority is so 
different, so unusual, and in some cases so extreme.
  The argument is being made on the other side--listen to this 
argument. This argument is being made: Well, we are in a campaign year. 
This is a Presidential election year. Who knows who the next President 
will be. Let the American people choose that President and that 
President choose the nominee.
  It overlooks one basic fact. Three years and three months ago, the 
American people chose a President. By a margin of 5 million votes, 
Barack Obama defeated Mitt Romney for President of the United States. 
They made their selection. Did they elect President Obama for a 3-year 
term? Let me check the Constitution, but I think it was a 4-year term. 
Oh, was it 3 years and 3 months? No. It turns out the American people 
spoke in our democracy by a margin of 5 million votes and said: Barack 
Obama, you will be President of the United States until January the 
20th, 2017. Was there a rider or some exclusion that said you can't 
appoint a nominee, name a nominee to fill a vacancy on the Supreme 
Court in the last year of your Presidency? I don't remember that. 
Perhaps that was the case in some States, but not in Illinois and, to 
be honest, in no other State.

  The President was elected for 4 years. He was given the consent and 
authority of the American people to govern this Nation for 4 years and 
to fill the vacancies on the Supreme Court as he is directed to do by 
the U.S. Constitution.
  Now the Senate Republicans have come up with a different spin: No; he 
may have been elected, but from their point of view, he wasn't given 
the full power of office. They say Barack Obama was given something 
less than any other previous President of the United States. They say 
he was not given the authority to fill a vacancy on the Supreme Court 
in the last year of his term.
  I would like to find the constitutional precedent for that. I invite 
my colleagues--we have two on the floor. One is the current chairman of 
the Judiciary Committee, and one is the former chairman of the 
Judiciary Committee. I invite them to show me that historical, 
constitutional precedent that says Barack Obama, the President of the 
United States, really only has the authority of the office for 3 
years--3 years and 2 months. Beyond that, he is a lame duck President. 
Give me the authority for that.
  What do they hang their hat on? They hang their hat on a speech made 
by Vice President Biden when he served in this body 25 years ago. Joe 
Biden is truly my friend, as he is the friend of virtually every 
Senator from both sides of the aisle. I respect him so much. I wasn't 
surprised at all when I heard the Senator from Iowa say that he gave a 
20,000-word speech. He gave a lot of 20,000-word speeches. I saw him 
deliver a few here, and they were a sight to behold. This one I think 
went on for 90 minutes as then Senator Biden shared his views on 
filling judicial vacancies and on recommendations. If we listen 
closely, we know the Senator from Iowa said that Vice President Biden 
``recommended,'' ``should consider.'' Well, let me ask this question: 
Was there ever any time when Senator Biden was the chairman of the 
Senate Judiciary Committee that he denied a hearing to a Supreme Court 
nominee? No. Was there ever a time as chairman of the Senate Judiciary 
Committee when he recommended to the Senate that they deny a vote on a 
Presidential nomination to fill a Supreme Court vacancy? No. So 
whatever his theory was that he expressed on the floor of the Senate--
and we all express a lot of theories--Joe Biden was respectful of this 
document. He knew what the U.S. Constitution said.
  I find it hard to imagine that the Republican Senators now in the 
majority are going to walk away from this Constitution and turn their 
backs on it. I have a lengthy statement that I ask unanimous consent be 
printed in the Record following my remarks which goes into the question 
of why the Republican majority continues to obstruct the appointment of 
judges and people to serve in the executive branch of government under 
this President. It has been unprecedented. They decided not just on 
this nominee but long ago that they would not give this President the 
same treatment, the same respect that has been given other Presidents. 
Now it has been brought front and center with this vacancy, the Scalia 
vacancy on the Supreme Court.
  I sure disagreed with Justice Scalia on a lot of things, but I do not 
argue with Judge Posner of the Seventh Circuit in my State when he said 
that Justice Scalia was a major force in terms of thinking on the 
Supreme Court. And what really undergirded the philosophy of Justice 
Scalia was what he called originalism. Some people mocked it, and some 
people just flat out disagreed with it. But he said time and again: 
Read the Constitution and read the precise wording of the Constitution. 
I saw different things in those words than he did, but that was his 
North Star when it came to Supreme Court decisions.
  Well, if he read article II, section 2, which says the President 
``shall nominate, and by and with the Advice and Consent of the Senate, 
shall appoint . . . Judges of the supreme Court''--there is little 
doubt--no doubt--in those words. And if he relied on the precedent of 
the United States, the history of the United States that the U.S. 
Senate has never denied a hearing to a Presidential nominee until this 
moment in history, has never refused a vote on a nominee until this 
moment in history, then he would realize that what is being done here 
is unprecedented and uncalled for.
  If my Republican colleagues now in the majority--54 votes strong 
against 46 on the Democratic side--really disagree with the President's 
choice, his nominee, whoever it may be, they have an option. There is a 
constitutional option. The constitutional option is to hold a hearing, 
do the background check which is done, and then vote, and if you 
disapprove of that nominee, vote no. That is the regular order and the 
regular course of events. That is the constitutional way to approach 
this.
  But they have gone even further. Senator McConnell said two days ago 
he would not only give the President's nominee no hearing and no vote, 
he refuses to even meet with that person, whoever it may be. Those are 
the lengths they will go to to avoid facing the constitutional 
responsibility that every Senator has.
  Senators can quote Vice President Joe Biden's speeches of 25 years 
ago as long as they want. They can read his words over and over again, 
but the fact is he never stopped a hearing, he never stopped a vote, 
and he honored the Constitution. The wording of the Constitution didn't 
go on for 20,000 words. It is just a handful of words that we have 
sworn to uphold and defend before we can become U.S. Senators.
  History will not look kindly on this political decision by the 
Republican majority. History will not give them a pass. History will 
ask time and again: How could you ignore the Constitution? How could 
you ignore your responsibility under the Constitution? Why won't you do 
your job, a job you were elected to do to fill this vacancy? Is a 
temporary political victory worth this--to turn your back on the 
Constitution and the history of this country? I don't think it is.
  I hope that when the Republican Senators go home and meet with their 
constituents over this weekend and in the days ahead, they will have 
second thoughts. When the President sends a nominee, I hope they will 
abide by the Constitution, be respectful of this document and 
respectful of this President, and give his nominee the same due 
consideration that has been given to Supreme Court nominees throughout 
history.
  Justice Anthony Kennedy became a Justice on the Supreme Court when a 
Democratic-controlled Senate gave him a vote--a hearing, and then a 
vote in a Presidential election year much like this one. A lameduck, 
outgoing President appointed Justice Kennedy.

[[Page S1025]]

A Democratic Senate did not refuse to meet with him, did not refuse to 
have a hearing, did not refuse a vote, but said: We will abide by the 
Constitution. For that outgoing President, he had the full authority of 
office. President Barack Obama deserves nothing less. And we as 
Senators have a responsibility under this Constitution, regardless of 
what speech was made 25 years ago, to pay close attention to these 
words and to do our constitutional duty.
  When the Senate majority leader said that he would not give any 
consideration to any Supreme Court nominee named by the President--no 
vote, no hearing, not even a courtesy meeting--it set a new low for the 
Senate. Throughout our Nation's history, no pending Supreme Court 
nominee who sought a hearing has been denied one. Some nominees were 
confirmed so quickly after their nomination that a hearing was not 
scheduled, and one nominee withdrew before her scheduled hearing could 
take place, but the Senate has never before refused a hearing to a 
pending nominee. Similarly, every pending nominee for an open Supreme 
Court vacancy has been voted upon by Senators. Some nominees were 
confirmed on the floor, some were rejected on the floor, some nominees 
were renominated before they got their vote, and some only received a 
vote on whether to be reported or discharged out of committee, but all 
of them got a vote. Yet the Senate majority leader has announced that 
President Obama's next nominee will get no hearing, no vote, not even a 
meeting.
  The President is obligated by Article II, section 2 of the 
Constitution to send a nominee to the Senate. That is the process the 
Founding Fathers established. There is nothing in the Constitution that 
provides for this process to be abandoned in an election year. Just as 
the President and Senate must do their jobs in times of war and 
economic depression, they must do their jobs in election years.
  The reality is that Republicans simply want to keep the Supreme Court 
seat vacant in the hopes that their presidential nominee will get to 
fill it. It is a purely political calculation. But Presidential 
politics do not trump the Constitution.
  The Republican leader should do what past Republican leaders like 
Senator Everett Dirksen of Illinois did when a Supreme Court vacancy 
arose in the election year of 1968--roll up his sleeves and get to 
work.
  Senate Republicans have come up with a number of excuses for shirking 
their constitutional responsibilities. But the bottom line is that 
there is no excuse for the Senate to fail to do its job.
  The President made clear yesterday that he is taking his 
constitutional responsibility seriously. He wrote a piece in the 
website SCOTUSblog explaining the careful, deliberative process he is 
undertaking to choose a nominee. The President said he will select a 
person who has outstanding qualifications, a commitment to impartial 
justice, a deep respect for the role of the judiciary, and a life 
experience that shows integrity and good judgment.
  The President is doing his job, as the Constitution requires. Senate 
Republicans must stop the pattern of obstruction that they have shown 
with so many of President Obama's nominees and do their job, too. Once 
the President selects a Supreme Court nominee, Senators should meet 
with the nominee, give him or her a fair hearing, schedule a vote, and 
fill the vacancy on our Nation's highest Court.
  Mr. President, I yield the floor.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Republican Obstruction of President Obama's Nominees, February 23, 2016

       Senate Republicans have announced they will obstruct 
     President Obama's forthcoming nominee to the Supreme Court 
     without even considering the nominee's merits, simply because 
     Republicans do not want President Obama to make the 
     nomination.
       This is far from the first time that Republicans have 
     engaged in unreasonable obstruction of nominations made by 
     President Obama. According to statistics from the 
     Congressional Research Service as reported in a Jan. 5, 2016 
     Politico article, ``the Senate in 2015 confirmed the lowest 
     number of civilian nominations--including judges and 
     diplomatic ambassadors--for the first session of a Congress 
     in nearly 30 years.'' Only 173 civilian nominees were 
     confirmed last year.
       Other examples of Republican obstruction of nominations 
     include the following:
       Judicial nominations:
       D.C. Circuit: In 2013, Republicans announced they would 
     oppose any person President Obama nominated to fill three 
     vacancies in the D.C. Circuit Court of Appeals, simply 
     because they did not want Obama to fill those vacancies. The 
     President nominated three unquestionably qualified people -- 
     Patricia Millett, Nina Pillard, and Robert Wilkins, and twice 
     Senate Republicans opposed cloture votes on Millett's 
     nomination. This prompted Senator Reid to change Senate rules 
     to lower the cloture vote threshold for lower court nominees 
     to 50, and subsequently the three D.C. Circuit nominees were 
     confirmed.
       Obstruction in the current Republican Senate: Last year, 
     Senate Republicans matched the record for confirming the 
     fewest number of judicial nominees in more than half a 
     century, with 11 for the entire year. Overall, in the current 
     Congress Republicans have only allowed 16 judges to be 
     confirmed, compared to 68 judges that were confirmed by the 
     Democratic-controlled Senate in the last two years of George 
     W. Bush's administration. There are 17 non-controversial 
     judicial nominees pending on the Senate executive calendar, 
     all of whom were reported out of committee by unanimous voice 
     vote. Currently there are 81 judicial vacancies, including 31 
     judicial emergencies.
       National security nominations:
       Attorney General Loretta Lynch had to wait 165 days after 
     her nomination to be confirmed by the Republican Senate in 
     April 2015. This was far longer than other recent Attorney 
     General nominees had to wait for a confirmation vote. By 
     comparison, the Democratic Senate confirmed Michael Mukasey 
     in 53 days in 2007.
       Treasury Undersecretary for Terrorism and Financial Crimes: 
     Adam Szubin was nominated on April 20, 2015 for this 
     position, which involves tracking and blocking financing to 
     terror groups like ISIS. Banking Chairman Shelby described 
     Szubin as ``eminently qualified'' for the position, but he 
     has still not received a floor vote in over 10 months.
       Under Secretary of Defense for Personnel and Readiness: 
     Brad Carson was nominated on July 8, 2015 for this position, 
     which is responsible for ensuring our military is ready to 
     face threats around the world. He is waiting for a hearing.
       Secretary of the Army: Eric Fanning was nominated on Sept. 
     21, 2015 for this position, which involves overseeing U.S. 
     Army personnel, strategy, and readiness around the world. He 
     waited four months just to get a hearing, and now he is 
     waiting to receive a Committee vote.
       General Counsel, Defense Department: Jennifer O'Connor was 
     nominated on Sept. 21, 2015 for this position, but she is 
     waiting for a hearing.
       Under Secretary for the Navy: Janine Davidson was nominated 
     on Sept. 21 for the #2 position in the Navy, but she is still 
     awaiting confirmation.
       Foreign policy nominations
       Ambassadors and foreign policy positions: Only 59 
     ambassador or other key foreign policy positions have been 
     confirmed in this Congress with an average confirmation wait 
     of six months. For comparison, during the 110th Congress 
     (2007-08) when George W. Bush was President and the Democrats 
     controlled the Senate, more than 120 nominees for key foreign 
     policy positions were confirmed with an average confirmation 
     wait of under three months.
       Of the seven State Department nominees confirmed a few 
     weeks ago, three were nominated in 2014 or earlier. These 
     include Brian Egan (Legal Advisor, first nominated in 2014), 
     John Estrada (Trinidad and Tobago, first nominated in 2013), 
     and Azita Raji (Sweden, first nominated in 2014).
       Ambassador to Mexico: Roberta Jacobson, a career nominee, 
     was nominated as ambassador to Mexico on June 2, 2015 but she 
     is still awaiting confirmation.

  The PRESIDING OFFICER (Mrs. Fischer). The Senator from Utah.
  Mr. HATCH. Madam President, before I begin, let me note that I have 
been very concerned about the tenor of the debate. I am very upset that 
yesterday my dear friend, the minority leader, yesterday attacked my 
other dear friend, the chairman of the Judiciary Committee, Senator 
Grassley, by calling him inept as a committee chairman. There is no 
reason for that kind of language on the floor, even if it were true, 
which it is not, and I think the minority leader knows it is not true.
  Senator Grassley is one of the most effective, hard-working, decent 
Senators in the U.S. Senate. He is not an attorney, and yet he has run 
the Judiciary Committee as well as any chairman that I recall in my 40 
years here. Everybody knows he treats people fairly. So I hope we can 
get rid of that kind of language and start treating people with decency 
and with regard. We differ widely with the Democrats on this issue and 
on other issues, but we are not slandering them. If a Republican 
behaved similarly, I would stand up to him. It just shouldn't happen.
  On Tuesday, I rose to honor the memory of the late Justice Antonin

[[Page S1026]]

Scalia, whom I knew quite well. With his passing, the Nation lost one 
of its greatest Supreme Court Justices ever to have served, and I lost 
a dear friend.
  Today, I rise to make the case that the next President should chose 
the nominee to replace Justice Scalia. As we embark on this debate, our 
first task should be to situate properly the Senate's role in seating 
members of the judiciary as well as the reasons for the role. In doing 
so, let me invoke an approach that Justice Scalia himself employed to 
make the same point.
  In addressing audiences, the late Justice often asked: What part of 
our Constitution was most important in protecting the liberties of the 
people? Invariably, audiences would provide answers such as protections 
for the freedom of speech, the freedom of religion, the right to keep 
and bear arms, the right of the people to be secure in their persons, 
houses, papers, and effects against unreasonable searches and seizures, 
and the like.
  Justice Scalia, like the vast majority of Americans, agreed that 
these protections are obviously important. I certainly do, too. 
Nevertheless, he always made one crucial observation: Even the most 
repressive dictatorships, such as the Soviet Union and North Korea, 
typically have provisions akin to our Bill of Rights in their 
Constitutions. Simply enshrining these basic rights in constitutional 
text does not ensure their protection.
  I ask unanimous consent that I be permitted to complete my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Our Nation's Founders knew, in the sage words of James 
Madison in Federalist 47, that ``[t]he accumulation of all powers, 
legislative, executive, and judiciary, in the same hands . . . may 
justly be pronounced the very definition of tyranny.'' They bestowed 
upon us the blessing of the Constitution that creates a Federal 
Government with limited and enumerated powers, with those powers 
diffused and balanced between three coequal branches of government.
  The Federal judiciary occupies a unique station in this 
constitutional architecture. In deciding cases and controversies, it 
is, in the seminal words of Marbury v. Madison, ``emphatically the 
province and the duty of the judicial department to say what the law 
is.'' Unelected and armed with life tenure and salary protection, 
judges thereby have the power to hold the political branches to 
account.

  This power is the source of much of the Constitution's great 
brilliance in its ability to restrain transient political majorities 
from exceeding the authority granted to government by the sovereign 
people; however, it is also the source of one of the great potential 
pitfalls of our system of government, in which five lawyers can 
substitute their personal policy preferences to the legitimate 
judgments of the executive and legislative branches, thereby usurping 
the powers of the self-governing people.
  This tension between the stark necessity of judicial independence to 
preserve limited government under the Constitution and the dangers of 
an unaccountable judiciary shirking its duty to say what the law is--
and instead saying what it thinks the law should be--makes the judicial 
selection process vitally important. Hewing to a careful process 
envisioned by the Framers that vests the Executive and legislature with 
critical but distinct roles is the means by which we can maintain the 
integrity of the judicial branch.
  The appointments clause delineates these distinct roles for the 
President and the Senate in the appointment property. Article II, 
section 2 provides that the President ``shall nominate, and by and with 
the Advice and Consent of the Senate, shall appoint . . . Judges of the 
supreme Court, and all other Officers of the United States.'' By 
creating two separate roles in the confirmation process, the executive 
branch to nominate and the legislative branch to provide its advice and 
consent, the Framers were creating rival interests.
  Alexander Hamilton cogently explained the various rationales for this 
particular allocation of appointment powers in Federalist 76. Following 
the example of the Massachusetts Constitution, the Framers vested the 
responsibility for nominations in one officer, the President, to ensure 
accountability and impartiality in selecting nominees and to guard 
against corruption, impropriety or imprudence that characterized the 
appointment process in many of the States. By concentrating the power 
of nomination in one person, the Framers sought to create 
accountability or in Hamilton's words a ``livelier sense of duty and a 
more exact regard to reputation.''
  That said, the Framers expressly rejected the notion of vesting an 
unchecked appointment power in the President alone. By requiring the 
President to submit his nominee for the Senate's approval, the Founders 
sought to forestall any potential abuse of the nomination power. 
Hamilton argued that the requirement of advice and consent would serve 
as ``an excellent check upon a spirit of favoritism in the President 
and would tend greatly to prevent the appointment of unfit characters 
from State prejudice, from family connection, from personal attachment, 
or from a view to popularity.''
  While the practice of the early Republic confirmed that the Chief 
Executive enjoys plenary authority over nominations, history also shows 
that the Senate equally possesses the plenary authority to withhold its 
consent the nominee for any reason. Nothing in the text of the 
appointment clause appears to limit the Senate's considerations. Just 
as the President has an unfettered right to veto legislation, the 
Senate enjoys complete and final discretion in whether to approve or 
even consider a nomination.
  My colleagues on the other side of the aisle have taken up the mantra 
that we must ``do our job'' with respect to the current vacancy, and so 
we must. But our job, despite what the Democrats are saying, is not to 
follow a particular path found nowhere in the Constitution. Rather, it 
is to determine the most appropriate way to fulfill our advice and 
consent role for this particular vacancy. The Senate would not be doing 
its job if we followed a process that is not appropriate for the 
situation before us today.
  Indeed, withholding consent can be just as valid an exercise of our 
role as granting it, and deferring the confirmation process for a 
particular vacancy may be the most appropriate and responsible exercise 
of the advice and consent role entrusted to us. It all depends on the 
circumstances.
  Consider these precedents. The Senate has never confirmed a nominee 
to a Supreme Court vacancy that opened up this late in a term-limited 
President's time in office. It is only the third vacancy in nearly a 
century to occur after the American people had already started voting 
in a Presidential election, and in both the previous two instances--in 
1956 and in 1968--the Senate did not confirm the nominee until the 
following year after the election had occurred.
  It has been more than three-quarters of a century since a Supreme 
Court Justice has been nominated and confirmed in a Presidential 
election year, and the only time the Senate has ever confirmed a 
nominee to fill a Supreme Court vacancy created after voting began in a 
Presidential election year was in 1916. That vacancy arose only because 
Chief Justice Charles Evans Hughes resigned his seat on the Court to 
run against incumbent President Woodrow Wilson.
  The cautiousness with which Senators in times past have approached 
election-year vacancies is only amplified by present circumstances. As 
my colleagues in the minority are fond of saying, elections have 
consequences, and the election of 2014 certainly had tremendous 
consequences.
  In the last election, the American people went to the polls to 
register their opposition to the wide range of illegal and 
unconstitutional actions of the Obama administration, including: its 
unilateral cancellation of duly enacted law, such as with illegal 
immigration; its regulation contrary to the plain text of the law, such 
as with the Clean Power Plan; its willingness to ignore its statutory 
obligations without meaningful justification, such as with the 
President's decision to release the top five Taliban leaders in U.S. 
custody without notifying Congress beforehand as required by Federal 
law; its efforts to stretch what lawful authorities the executive 
branch does possess beyond all recognition, such as with its mass

[[Page S1027]]

clemency effort for drug offenders; and its attempt to bypass the 
Senate's role in the confirmation process, one of nearly two dozen 
times the Obama administration has lost 9 to 0 before the Supreme 
Court.
  The American people elected our Republican Senate majority in large 
part to check the overreach of President Obama, and given how crucial 
the courts have proven in holding this administration accountable to 
the Constitution and the law, the Senate has every reason to approach 
lifetime appointments cautiously and deliberately, especially 
appointments to the highest Court in the land.
  Moreover, leaving Justice Scalia's seat vacant until after the 
election would hardly result in a constitutional crisis. An even number 
of Justices has never inhibited the Supreme Court from functioning. An 
absence of this length would be far from unprecedented, as the Court 
has adapted to vacancies that lasted for more than 2 years in its 
history and as recently as 1970 accommodated a vacancy of more than a 
year thanks to liberal obstruction of two candidates nominated by a 
Republican President. Famously, when Justice Robert Jackson took a 
year-long leave of absence to serve as chief prosecutor at the 
Nuremburg war crimes tribunal, Justice Felix Frankfurter wrote to him 
and advised him that having a temporary eight-member Court as a result 
of his prolonged absence did not ``sacrifice a single interest of 
importance.''
  Moreover, the recusal process oftentimes requires the Court to 
consider various cases with a reduced number of Justices, including 
recent high-profile cases such as Arizona v. United States in 2012 and 
Fisher v. University of Texas in 2013. Consider that Justice Kagan, due 
to her service as Solicitor General, had to recuse herself in 38 cases. 
In these situations the Court has well-established rule for dealing 
with its cases, including 4-to-4 splits. At its discretion, the Court 
has the authority to hold cases over or reargue them when a new Justice 
is confirmed.
  Indeed, the vast majority of Supreme Court decisions are unanimous, 
nearly so, or are split along nonideological lines. Only a relatively 
small minority of cases--typically less than 20 percent--are decided 5-
to-4, and even fewer divide along predictable ideological lines. In the 
unlikely event that a tie should occur, as has occurred in only 2 of 38 
of Justice Kagan's recusals, the ruling of the lower court is simply 
upheld. Put simply, the absence of one of the nine Justices on the 
Court is far from calamitous, but a hastily made appointment could be.
  If the particular circumstances we face today counsel in favor of 
waiting until after the election, why would we act otherwise simply 
because the other party tells us to do so?
  The minority leader made this same point in 2005 when he flatly 
rejected the claim that the Senate must always give nominees an up-or-
down vote. In fact, he said that the very idea would be, in his own 
words, ``rewriting the Constitution and reinventing reality.''
  He said: ``The duties of the United States Senate are set forth in 
the Constitution of the United States. Nowhere in that document does it 
say that the Senate has a duty to give Presidential nominees a vote. It 
says that appointments shall be made with the advice and consent of the 
Senate. That is very different than saying that every nominee receives 
a vote.''
  Yesterday, I was stunned to hear numerous Democrats contradict the 
minority leader on this point. For example, the minority whip said that 
the ``clear language of the Constitution'' requires an up-or-down 
confirmation vote. That claim is obviously wrong on its face, since the 
Constitution says no such thing. By the minority leader's 2005 
standard, these Democrats today are ``rewriting the Constitution and 
reinventing reality.'' Perhaps they received different sets of talking 
points.
  This claim by the minority whip and others that the Constitution 
requires an up-or-down vote is baffling for another reason. Between 
2003 and 2007 the minority whip voted 25 times to filibuster Republican 
judicial nominees. In other words, he voted 25 times to deprive 
judicial nominees of an up-or-down confirmation vote that he now says 
the Constitution's clear language requires.
  Many of my colleagues on the other side of the aisle have also 
repeatedly observed that deferring the confirmation process until the 
next President takes office would be unprecedented. This point escapes 
me as well. The filibusters used to defeat Republican judicial nominees 
were also unprecedented, yet many Democrats voted for them anyway. 
While past practice matters, the ultimate question is not whether this 
has happened before but whether it is an appropriate step to take now.
  The Senate's job is to decide how best to carry out its duty of 
advice and consent in the situation before us. Thankfully, we are not 
without guidance in making that judgment. I think back to 1992, a 
Presidential election year not unlike this one, in which different 
parties controlled the White House and the Senate. My friend, then-
Judiciary Committee Chairman and now-Vice President Joe Biden, came to 
this very floor on June 25, 1992, and delivered what he said was the 
longest speech in his then 19 years in this body. He evaluated the 
state of the confirmation process, suggested reforms for the future, 
and made a specific recommendation. He said that if a Supreme Court 
vacancy occurred in that Presidential election year, President George 
H.W. Bush ``should consider following the practice of a majority of 
predecessors and not--and not--name a nominee until after the November 
election is completed.''
  If the President did choose a Supreme Court nominee, Chairman Biden 
said: ``The Senate Judiciary Committee should seriously consider not 
scheduling confirmation hearings on the nomination until after the 
political campaign season is over.'' While Vice President Biden might 
feel differently about that today, that is what he said then as 
chairman of the committee.
  In other words, deferring the confirmation process until the next 
President was in office was the most appropriate way for the Senate to 
fulfill its advice and consent role. Then-Chairman Biden listed several 
factors that led him to this recommendation, and every one of these 
factors exists today.
  First, he noted that an appointment process in 1992 would take place 
in divided government. Different parties also control the White House 
and Senate today.
  Second, he said that Presidents had recently made controversial 
Supreme Court appointments, noting that those nominees received a 
significant number of negative votes in the Senate. Again, the same is 
true today. President Obama's appointments of Sonia Sotomayor and Elena 
Kagan, for example, are both among the top five most opposed Supreme 
Court appointees in history.
  Third, then-Chairman Biden noted that the Presidential election 
process had already begun. Once again, that is the case today. That is 
the case today, with voters in numerous States having already cast 
ballots.
  Fourth, Chairman Biden said that the confirmation process itself had 
become increasingly divisive. This criterion strikes me as ironic, 
given its source. After all, Senate Democrats are responsible for 
provoking the so-called confirmation wars with the political and 
ideological inquisition used to defeat the Supreme Court nomination of 
Robert Bork and the despicable smear tactics used against the 
nomination of Clarence Thomas.
  Senate Democrats have also been responsible for every major 
escalation in judicial confirmations since 1992.
  Within 2 weeks of President George W. Bush's inauguration, the Senate 
Democratic leader vowed to use ``whatever means necessary'' to defeat 
undesirable judicial nominees.
  A few months later, Senate Democrats organized a retreat with the 
goal, as the New York Times described it, of changing the ground rules 
for the confirmation process.
  In January 2002, former Democratic Congressman, appeals court judge, 
and White House Counsel Abner Mikva urged Senate Democrats not to 
consider any Supreme Court nominees during President Bush's first term.
  In 2003, Democrats began for the first time to use the filibuster to 
defeat judicial nominees who otherwise would have been confirmed.
  In July 2007, Senator Charles Schumer--another friend of mine--said 
in a speech to the American Constitution Society that the Senate should 
not confirm a Supreme Court nominee during President Bush's final 18 
months in

[[Page S1028]]

office except in what he called ``extraordinary circumstances.''
  When then-Chairman Biden said in 1992 that the state of the 
confirmation process should defer consideration of any Supreme Court 
nominees, no judicial nominee had been defeated by a filibuster in 
nearly 25 years. During President George W. Bush's tenure alone, 
Democrats led 20 filibusters that ultimately defeated five appeals 
court nominees.
  More to the point, in 2006, then-Senators Biden, Clinton, Reid, 
Leahy, Schumer, Durbin, and Obama voted to filibuster the Supreme Court 
nomination of Samuel Alito. President Obama did say last week that he 
now regrets voting to filibuster the Alito nomination, although it took 
him 3,670 days to reach that conclusion. He told me that last night at 
the White House in a private conversation we had, and I accept his 
statement. I like the President personally, but the record does not 
support the other side's audacious claims.
  Finally, after the District of Columbia Circuit Court of Appeals--a 
court that many of us consider nearly as important as the Supreme 
Court, given its role in regulatory oversight--rightfully invalidated 
several key actions of the Obama administration, Democrats openly 
sought to fill that court with compliant judges in order to obtain more 
favorable decisions. The President's allies in this body, in their own 
words, ``focus[ed] very intently on the D.C. Circuit'' to ``switch the 
majority'' and were willing to ``fill up the D.C. Circuit one way or 
another.''
  In the rush to eliminate any possible judicial obstacle to the 
administration's overreaching agenda, Senate Democrats in 2013 used a 
parliamentary maneuver--the so-called nuclear option--to abolish the 
very nomination filibusters they had used so aggressively, but with one 
telling exception: They left alone the possibility of filibustering a 
Supreme Court nomination. Having done so, they must continue to believe 
the Senate's advice and consent role allows denying any confirmation 
vote to a Supreme Court nominee.
  I am disappointed and, frankly, a little baffled at the response so 
far of my Democratic colleagues. Now-Vice President Biden and President 
Obama himself have both said that he was speaking in 1992 about a 
``hypothetical vacancy.'' Of course he was, and his purpose in doing so 
was to outline what the President and Senate should do if that 
hypothetical vacancy materialized. Well, that vacancy is no longer 
hypothetical; it is very real. Yet the Vice President now says the 
Senate should not take his advice after all.

  Vice President Biden has also said that his words from 1992 are being 
taken out of context. We have all faced the inconvenient truth of our 
past words--especially in these areas--and the go-to objection is often 
about context.
  I have two suggestions. First, my colleagues should read then-
Chairman Biden's speech for themselves. It takes up 10 full pages in 
the Congressional Record, so there is as much context as anyone could 
possibly want to consider. A second option is to consider how the media 
had described that speech. One CBS news story, for example, has the 
headline: ``Joe Biden Once Took GOP's Position on Supreme Court 
Vacancy.'' Perhaps they, too, are contextually challenged.
  This is what the Washington Post said about the speech: ``But Biden's 
remarks were especially pointed, voluminous and relevant to the current 
situation. Embedded in the roughly 20,000 words he delivered on the 
Senate floor that day were rebuttals to virtually every point Democrats 
have brought forth in the past week to argue for the consideration of 
Obama's nominee.''
  The constant refrain of Senate Democrats and their media allies over 
the past few days is that the Senate should just ``do its job.'' Of 
course, what they really mean is that the Senate should do what they 
want the Senate to do. Then-Chairman Biden believed in 1992 that the 
Senate would be doing its job by deferring the confirmation process for 
a Supreme Court nominee. Senate Democrats presumably believed the 
Senate was doing its job by denying confirmation votes to judicial 
nominees under President George W. Bush. The minority leader presumably 
believed the Senate would be doing its job by not voting on nominations 
since, as he said in 2005, the Constitution does not require it to do 
so. And I can only assume that the senior Senator from New York 
believed the Senate would be doing its job if it followed his 2007 
recommendation and refused to consider Supreme Court nominees in a 
President's final 18 months.
  Perhaps the most audacious claim trafficked by the other side of the 
aisle over the past few days is, as the senior Senator from New York 
has said, ``It doesn't matter what anybody said in the past,'' or, as 
President Obama put it, ``Senators say stuff all the time.''
  In response, consider this point: Benjamin Franklin wrote in 1789 
that ``in this world, nothing can be said to be certain except death 
and taxes.'' I would like to add one more thing to that list: It is 
equally certain that if a Supreme Court Justice beloved by the left 
passed away in the final year of a Republican President's tenure, a 
Democratic-controlled Senate would not only refuse to consider any 
nominee of the lame-duck President but would also extensively cite 
then-Chairman Biden's 1992 speech and other such clear statements for 
support. No one should have any doubt about that.
  Indeed, my friends on the other side seem to have fallen into the 
trap identified by Justice Scalia in his opinion in the Noel Canning 
case in which he warned that ``individual Senators may have little 
interest in opposing Presidential encroachment on legislative 
prerogatives, especially when the encroacher is a President who is the 
leader of their own party.''
  Before I conclude, I cannot let pass the disturbing comments 
yesterday by my friend the minority leader about Judiciary Committee 
Chairman Chuck Grassley. I have served with Senator Grassley for nearly 
25 years on the Finance Committee and for 35 years on the Judiciary 
Committee. If there is anybody in this body who knows his own mind and 
makes his own decisions, it is Chuck Grassley.
  I was flabbergasted by the minority leader's statement that Chairman 
Grassley has allowed the majority leader to ``run roughshod'' over him. 
If the minority leader's case for committee action depends on grasping 
at such unwarranted and unjustified personal attacks, then he has 
simply exposed the weakness of his own position.
  Under Chairman Grassley's leadership, the Judiciary Committee has 
reported 21 bipartisan bills. Five of them have become law--the same 
number as during the entire 113th Congress under Democratic leadership. 
This record contrasts quite favorably to the senior Senator from 
Nevada's abysmal record in the last Congress as majority leader, in 
which the Senate set a record for bills that bypassed committee 
consideration and voted on only 15 amendments in all of 2014.
  I know there are different opinions about whether or how to address 
filling the vacancy left by Justice Scalia's death, and I appreciate 
that. And I appreciate that Senators and others feel strongly about 
these issues. Nevertheless, it is absolutely disingenuous for the 
minority leader, who today demands the same up-or-down confirmation 
vote he 25 times tried to prevent for Republican nominees, to suggest 
that Chairman Grassley is doing anything other than what he believes is 
right. Senator Grassley is one of the great Senators here. He is 
totally honest, and we all know it. He speaks his mind, and we all know 
that, too.
  I have served longer on the Judiciary Committee than any other 
current Member of this body. During these past four decades, including 
during my more than 8 years as chairman of the committee, I have 
strived to develop a record of true fairness toward the nominations 
made by Presidents of each party. I have absolutely no doubt that my 
treatment of this vacancy fits squarely within this record of fairness.
  The bottom line is simple: The Constitution obliges the Senate to 
take its role seriously as a check on the President in the 
consideration of lifetime appointments to the Federal courts, 
especially the Supreme Court. With voting already underway to replace 
our lame-duck President, delaying consideration of a nomination until 
after the election comports not only with historical practice but also 
with the prescriptions of key Democrats in the Senate and the White 
House over many years. By protecting the integrity of the Supreme Court 
from this environment, Senate Republicans are unquestionably doing the 
job the Constitution charges

[[Page S1029]]

us to do. We can have differences, no question about it, but the Senate 
Republicans are acting responsibly.

  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.

                          ____________________