[Congressional Record Volume 162, Number 32 (Monday, February 29, 2016)]
[House]
[Pages H1037-H1043]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
{time} 1915
SUPREME COURT VACANCY
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 6, 2015, the gentleman from New York (Mr. Jeffries) is
recognized for 60 minutes as the designee of the minority leader.
Mr. JEFFRIES. Mr. Speaker, it is an honor and a privilege for me to
once again stand on the floor of the House of Representatives along
with my distinguished colleague from Ohio, Representative Joyce Beatty,
coanchor of this CBC Special Order hour, this hour of power where, for
the next 60 minutes, we will have an opportunity to speak directly to
the American people about an issue of grave importance to the integrity
of our democracy, and that is making sure that the United States Senate
fulfills their constitutional obligation to advise and consent as it
relates to considering any Supreme Court nomination that President
Obama sends up to that body.
We know that Justice Antonin Scalia has moved on after a long and
distinguished career. Though I disagree with almost every single
judicial opinion that he has issued, he served this Nation well.
Now that he has moved on, the Supreme Court, which is contained in
Article III of the United States Constitution, has a vacancy. It is the
obligation of the United States Senate to fill that vacancy by
considering whatever nominee President Barack Obama sends forward.
Members of the United States Senate take an oath of office to
faithfully discharge their responsibilities. When you look at Article
II, section 2, of the United States Constitution, which gives the
President the power to nominate someone to fill a vacancy on the
Supreme Court, it is the Senate that must consider that nominee.
Since the early part of the 20th century, there have been eight
different Supreme Court nominees who have been voted on in an election
year. Six of them actually were confirmed, but all eight of them
received a hearing.
So, for the life of me, I can't figure out why Senator Mitch
McConnell thinks that he can get away with holding a nomination up
without even the slightest bit of consideration. So we are going to
explore that here today.
We will be joined by any number of distinguished Members of the House
of Representatives and the Congressional Black Caucus, but let me
proceed by yielding to my good friend and colleague from Ohio (Mrs.
Beatty), my dynamic coanchor who does such a tremendous job on behalf
of the people of the great State of Ohio and the city of Columbus.
Mrs. BEATTY. Thank you so much, Congressman Jeffries. It is certainly
an honor and a privilege for me to join you this evening as coanchor
for this Congressional Black Caucus Special Order hour.
Congressman Jeffries' scholarship and distinguished talents as a
member of the Judiciary Committee have not gone unnoticed. I thank him
for leading by example in challenging us to initiate and follow through
in sending a message on Senate Republicans' refusal to act on the
Supreme Court vacancy.
In part, tonight's Congressional Black Caucus Special Order hour,
Senate Republicans: Do Your Job, does just that.
As you reflected in your opening statement, Article II, section 2, of
the Constitution expressly designates that the President has a duty to
name and the Senate has a responsibility to advise and consent a
nominee to fill the seat.
President Obama takes this very seriously. He has stated: ``It's a
decision to which I devote considerable time, deep reflection, careful
deliberation, and serious consultation with legal experts, members of
both political parties, and people across the political spectrum.''
But Republicans have made a decision to completely refuse
consideration of anyone that President Obama nominates to the Supreme
Court. In fact, they have stated that they won't hold a hearing or a
vote before the full Senate.
Senate Democrats never acted so recklessly when faced with this
situation in 1988, when there was a vote to confirm Justice Kennedy.
There was no talk of doing nothing until after that year's election
because it was unthinkable then to leave the Court shorthanded for that
long. And it remains so now.
The power of the Court, Mr. Speaker, is reflected in the work it
does. Its decisions often shape the policy as profoundly as any law
passed by Congress or any action taken by the President of these United
States.
When we look back to our history, especially as African Americans,
the importance of the decisions handed down by the Supreme Court cannot
be overstated.
For example, most of us are familiar with Brown v. Board of Education
in 1954, which reversed Plessy v. Ferguson and its ``separate but
equal'' ruling.
Striking down segregation in our Nation's public schools provided a
major catalyst for the civil rights movement and made advances in
desegregating housing, public accommodations, and institutions of
higher education possible.
After Brown, the Nation made some great strides towards opening the
doors of education to all students. Unfortunately, the promise of the
Brown decision remains unfulfilled in many ways.
More than 2 million Black students attend schools where 90 percent of
the student body is made up of minority students. On average, schools
serving more minority populations have less experienced, lower paid
teachers who are less likely to be certified.
A report from the Center for American Progress found that a 10
percent point increase in students of color at a school is associated
with a decrease in per-pupil spending of $75.
In many ways, more than 60 years after Brown v. Board of Education
school systems in the United States are still separate and unequal. And
we are just not witnessing educational disparities at the elementary
and secondary education level. College enrollment is racially
polarized.
White students are overrepresented in selective colleges, which have
more resources to educate and to support them, while African American
students are overrepresented in less selective institutions.
Mr. Speaker and Congressman Jeffries, you see where I am going with
that.
[[Page H1038]]
This is also why the late Justice Scalia's comments during oral
arguments of the pending United States Supreme Court case, Fisher v.
University of Texas at Austin, were so disturbing.
He stated, in part: Maybe the University of Texas ought to have fewer
African Americans.
These comments are inaccurate and insulting to me and to African
Americans. They undervalue the historic achievement that African
Americans have made.
Thousands of Black Americans have excelled to the top tier of their
universities. Many of them you will hear from tonight because they are
members of the Congressional Black Caucus.
They are scholars. They are the conscience of the Congress. They
represent the diversity of America's best universities and of America's
Historically Black Colleges and Universities.
Mr. JEFFRIES. I thank the distinguished gentlewoman for her wonderful
thoughts and observations, and I look forward to our continued
dialogue.
It is now my honor and privilege to yield to the gentleman from
Virginia (Mr. Scott), one of those individuals that Representative
Beatty mentioned who is really a legal giant amongst us.
He is someone who has served this institution well. He understands
the Constitution, the notion of separation of powers, and the
importance of a fair and equitable justice system.
Mr. SCOTT of Virginia. I thank the gentleman from New York and the
gentlewoman from Ohio for organizing tonight's Special Order to call on
our colleagues in the Senate to do their job and provide their advice
and consent on the President's upcoming nomination to the United States
Supreme Court.
The Constitution is pretty clear on this issue. Article II, Section
2, doesn't say the President might or the President should. It says the
President shall nominate, and by and with advice and consent of the
Senate, appoint judges to the Supreme Court.
There seems to be some suggestion that, if it is an election year, he
ought to skip that process and let the next President make the
appointment. They say there is very little precedence for a President
nominating somebody in an election year.
That might be technically correct, but the fact of the matter is that
there have been virtually no vacancies that have occurred during an
election year. I think the last one was about almost 50 years. In that
case, an appointment was made and considered.
That is the process that ought to take place in this case. The rarity
of such an event should not preclude the Senate from fulfilling its
constitutional responsibility. There is precedent for the President
nominating and the Senate at least considering the nomination during an
election year.
Now, Justice Kennedy was confirmed in an election year in 1988. That
was a 7-month process that began with the appointment of Robert Bork to
the Supreme Court. His nomination was considered and defeated.
And then there was the appointment of Douglas Ginsburg. We will just
say his nomination went up in smoke. And then we had the nomination and
confirmation of Justice Kennedy.
In 7 months, from start to finish, another nomination was made and
collapsed and another nomination made, all within 7 months. We could
complete that entire process by the first Monday in October, the
beginning of the Supreme Court session.
There is no precedence for the President declining to nominate
somebody and virtually no precedence for the Senate just to ignore a
nomination that is made.
The people overwhelmingly reelected President Obama in 2012 to a term
that does not end until January 20, 2017, and we fully expect the
President to fulfill his duty to nominate a qualified individual to the
Supreme Court to fill the current vacancy.
A failure of the Senate to act this year would be unprecedented.
There is ample time for that to take place. The longest confirmation
process for a single nominee has been 125 days.
On historic average, it takes 25 days to confirm or reject a nominee.
As of today, the Senate has 216 days until the first Monday in October.
If the Senate were to refuse to consider any of President Obama's
nominations--and they have said they want the next President to make
the appointment--there has been no indication that they will give
expedited consideration to the next President's nomination. It could be
well into the next year by the time the new Justice is confirmed and
sworn in.
Even on an expedited schedule, the new President would not be able to
nominate anyone until they are sworn in on January 20. The Senate
Judiciary Committee would need time to prepare for hearings, which
could not occur until probably February. And then the full Senate would
need time to consider the nomination, with the confirmation not likely
until probably March.
{time} 1930
Now, by March of a term, the term is effectively about over. Most of
the oral arguments have already taken place and they are into
decisions. You can't participate in a decision if you skip the oral
argument.
So not only would the vacancy occur through the rest of this term,
almost half of a Supreme Court term, it would be well into the next
term and, effectively, through most of the next term.
There is no excuse to leave the Court vacancy open in what then would
be a historic new precedence. There is no precedence for keeping a
vacancy open that long.
We need the justice appointed. The Senate ought to do its job. The
President has indicated that he will do his job, as mandated by the
Constitution, and so the Senate ought to just fulfill its
responsibility under the Constitution and consider an appointment.
Otherwise, you will have a vacancy not only through the rest of this
term--and oral arguments have been taking place--you will have the
vacancy through the rest of this term. You don't need a vacancy through
the entire rest of the next term.
There is plenty of time to consider and vote up or down on a
nomination. And the unprecedented vacancy that would occur if the
Senate fulfills its threat to stonewall any nomination is just
unprecedented.
So I want to thank the gentleman from New York and the gentlewoman
from Ohio for giving us the opportunity to just say a word about the
importance of everyone in our democracy fulfilling their constitutional
responsibilities.
The President shall appoint, and the Senate shall consider, advise
and consent, so that we can have a Supreme Court Justice appointed
before the first Monday in October.
We have plenty of time to do that. There is no excuse for not doing
it, and we expect the Senate to do its job.
Mr. JEFFRIES. Mr. Speaker, I thank the distinguished gentleman from
Virginia for highlighting several important points, including the fact
that there is no election year exception in Article II, section 2 of
the United States Constitution.
This is all in Mitch McConnell's mind, cooked up in some partisan
laboratory in order to stop this President from being able to move
forward and do the business of the American people.
We shouldn't be surprised, because we know Mitch McConnell stated
very early on that his objective was to grind everything to a halt here
in the Capitol to try to prevent President Obama from being re-elected.
Not my words, his words.
But here's the thing. President Obama was re-elected in an electoral
college landslide. And his opponent in that race, Mitt Romney, tried to
make it, in part, an election that was a referendum on the possibility
that President Obama would have the opportunity to fill a Supreme Court
vacancy.
That issue was laid before the American people by President Obama's
opponent, and the American people responded, processed all of the
facts, and decided to re-elect President Obama, send him back to 1600
Pennsylvania Avenue.
The American people did their job. The President is prepared to do
his job. The Senate Republicans need to do their job as well.
It is now my honor and my privilege to yield to someone who has been
a stalwart for justice in this institution, a revered Member of the
House of Representatives, the great whip of House Democrats, and
someone who has the respect of everyone in the United
[[Page H1039]]
States Capitol and beyond for his service to the House and his service
to the country, a great friend to the Congressional Black Caucus, and
we are so thankful that he is present here today.
I yield to the gentleman from Maryland (Mr. Hoyer), the Democratic
whip.
Mr. HOYER. Mr. Speaker, I thank my friend from New York (Mr.
Jeffries) for his excellent presentation.
I want to thank Mr. Scott, who, as the gentleman observed, is one of
the leaders in this Congress on the Constitution and on the law and on
equal justice.
I want to thank my friend from Ohio, the gentlewoman from Ohio, for
her remarks.
I noticed that the chair of the Congressional Black Caucus, Mr. G.K.
Butterfield, formerly a judge on the Court in North Carolina, is here.
Mr. Speaker, I want to first say that I thank the Congressional Black
Caucus for sponsoring this Special Order.
I want to tell every Member, and all Americans ought to know, this is
not an issue related to one group, to one gender, to one race, to one
nationality. The failure to fill the vacancy on the Supreme Court will
affect every American. So we rise tonight to ask the Senate to do its
duty.
Mr. Speaker, I am pleased to be here on the floor this evening with
my distinguished colleagues from the Congressional Black Caucus for
this Special Order.
The Supreme Court now has a vacancy, as everyone knows, that must be
filled. The American people deserve a Supreme Court operating at full
strength.
Mr. Speaker, I am old enough to have been alive at the time that John
Kennedy was assassinated. Within hours of his death, we swore in Lyndon
Johnson as President of the United States because we wanted to make
sure that there was a continuity of service. As sad and as tragic as
those hours were, the responsibility of having a President of the
United States was met within just a few hours.
Mr. Speaker, when a vacancy occurs in this House--and there are,
after all, 434 of us left when that happens--the State laws put a time
limit on the Governors' action to call an election so that that vacancy
can be filled.
Why?
Because the Constitution of those States do not want to have a
vacancy exist for very long and have their State or their district not
represented.
Now, there is not a time limit with respect to the Supreme Court, per
se. And the reason for that, of course, is the process, as Mr. Scott
just pointed out, sometimes take a little longer, sometimes takes a
little shorter.
But in 7 months, as the gentleman pointed out, they had three
nominees considered. Two were defeated after debate and a vote, and the
third was confirmed. The process worked, and it worked in the last year
of an administration.
President Obama has a constitutional responsibility to nominate a
candidate for the Court that will exercise sound judgment, uphold the
principle that all people are created equal and must be treated equally
under the laws.
The Founders of our country very wisely made the number on the
Supreme Court an odd number, not an even number, because the Founders
did not want gridlock. Now we are used to gridlock in this Congress.
But they did not want gridlock on the Court, and so they provided for a
decision to be made by five members out of nine.
Now, however, with four and four, they will maybe not be able to make
a decision. That was not contemplated by the Founders, nor would it
have been welcomed by the Founders.
Shamefully, Senate Republicans have said they have no intention of
even meeting with a nominee put forward by President Obama. That is not
only disrespectful of the President of the United States, Barack Obama,
but it is contrary to the best interest of the Supreme Court, but more
importantly, to the people of this country.
It is appalling that Republicans would prefer to leave a vacancy on
the Supreme Court, thereby rendering it in some cases unable to make a
decision, unable to perform its duties of being the final arbiter when
circuits may differ on an issue.
If Members of one party or another were simply to ignore the other
side and refuse to carry out their duties within a divided government,
our democracy would break down, and in some respects it has.
We ought not to carry that conduct to the Supreme Court. We must not
let that happen and we must not allow this Supreme Court vacancy to
remain unfilled.
The Court currently has a number, as the gentleman from New York has
pointed out, of major cases pending that require a decision; not to be
remanded to a lower court, because if that is done, that judgment may
stand for that circuit, but there will be other circuits around the
country who may make a different decision.
Mr. Speaker, the Supreme Court has been a powerful safeguard of
American's liberty and equality over the past century and beyond.
From recognizing the right of every child to attend desegregated
schools, to protecting every loving couple who wishes to marry, the
Court has breathed life into the words of our Declaration of
Independence that all are ``created equal, and they are endowed by
their Creator,'' not by us, not by the Constitution, ``by their Creator
with certain unalienable rights.''
That may be self-evident, Mr. Speaker, but it is not self-executed.
And we have established the Supreme Court of the United States to make
a decision so that that can be realized.
Melissa Hart, Director of the Byron White Center, a former member of
the Supreme Court for Constitutional Law at the University of Denver
said, if we don't act, ``It would be a monumental crisis for the
development of the law and the need to resolve legal questions.''
Caroline Frederickson, president of the American Constitution Society
for Law and Policy, wrote on February 19, ``It would be unfathomable to
go through this term,'' and as Mr. Scott pointed out, the next term,
``with a Supreme Court hobbled by a vacancy.''
Mr. Speaker, let me remind you again, if a President dies,
immediately we fill the vacancy. If a Member of Congress dies, every
State has a time limit in which that must be filled so that democracy
can be represented and operate in the way our Founders wanted it to
operate.
When the President nominates a candidate to the Court, the Senate, in
my view, Mr. Speaker, has a responsibility under the Constitution to
give that nominee every due consideration. They do not have a
constitutional responsibility to approve it, as Mr. Scott has pointed
out, but they have a responsibility to consider it.
We must not allow politics, we must not allow politics, we must not
allow politics to allow the obstruction of this most essential
institution of our democracy and the rule of law.
I want to thank my friends in the Congressional Black Caucus for
leading this Special Order and for their efforts to hold Senate
Republicans accountable for their blatantly irresponsible action on
this matter.
Mr. Speaker, there is always another election. It may be 2 years
away, it may be 4 years away, but if we adopt the principle that if we
don't think we can win now, we will obstruct now and hope to win later,
America and Americans will not be well-served.
I thank my friend for yielding.
Mr. JEFFRIES. Mr. Speaker, I thank the distinguished Democratic whip
for a very insightful and powerful observation, for pointing that the
very fabric of the United States Constitution is threatened by the
willingness of Senate Republicans to abdicate their legislative
responsibilities to hold hearings and act on a nomination put forth by
the President of the United States of America.
{time} 1945
It is now my great honor and privilege to yield to the distinguished
chairman of the Congressional Black Caucus, as was pointed out by Mr.
Hoyer, a former prominent member of the North Carolina judiciary, a
legal scholar, a historian, and, of course, the leader of the
conscience of the Congress here in the United States House of
Representatives.
Mr. Speaker, I yield to the chairman, G.K. Butterfield.
Mr. BUTTERFIELD. Mr. Speaker, let me begin tonight by thanking the
gentleman, Mr. Jeffries, for yielding to
[[Page H1040]]
me this evening and to thank him for his extraordinary friendship and
leadership in the Congressional Black Caucus.
I want to publicly thank you for coming to my district this past
weekend. You spoke--some would say you preached--at Mount Vernon
Baptist Church in Durham, North Carolina, and I thank you so very much
for the message that you brought to my constituents in North Carolina.
Mr. Speaker, moments after the death of Justice Scalia, the majority
leader of the United States Senate announced to the country in a tone
of defiance that the Senate will not consider any nomination--any
nomination--of President Barack Obama to replace Justice Scalia. Mr.
Speaker, the American people can see right through this.
Though I represent a Democratic-leaning district in North Carolina, I
represent many Republicans in North Carolina. Many of them have told me
how disappointed they are with the Senate Republican leadership in
making this announcement. Senator McConnell is reinforcing the
Republican political agenda to disrupt--to disrupt--governmental
functions when the circumstances do not line up with their conservative
philosophy.
It is imperative that we have nine members of the U.S. Supreme Court
deciding constitutional issues that are important to the American
people. The irony in all of this is that my Republican friends
constantly on this floor talk about strict construction of the
Constitution. A strict construction of the Constitution, as Mr. Hoyer
said a moment ago, requires the President to nominate an individual
once there is a vacancy on the Court. The Senate, the United States
Senate, has the awesome responsibility of having a hearing, deciding,
and confirming the nomination by an up-or-down vote. So it is absurd to
suggest that President Obama should be denied the opportunity to
nominate a qualified Justice to replace Justice Scalia.
The American people should clearly understand that Senate Republicans
have a political agenda to pack the Court with conservative Justices
who would reverse years of commonsense progressive jurisprudence. So
the Congressional Black Caucus tonight demands Senate Republicans to
stop the complete blockade and the blatant disrespect of our President.
Senate Republicans' outright refusal to hold a hearing on any
individual nominated by the President to serve on the Court is an
affront to our Constitution and the American people. Such divisive
actions undermine our democracy and reduce our standing in the world.
This blockade is an obstruction and runs afoul of the duties held by
those who hold a seat in the august Chamber of the United States
Senate.
I have read that Senator Grassley, Senator McConnell, and others will
meet with President Obama this week. I hope they meet. I hope they sit
together and reconcile their differences because this issue needs to be
put to rest. We call on Senate Republicans to hold hearings once
President Obama submits his nomination and follow the procedures set
forth in the Constitution.
In short and in closing, the Congressional Black Caucus, the 45, 46
members of the Congressional Black Caucus--and, indeed, the American
people--have one message--one message--for Senate Republicans: Do your
job. Don't play partisanship. Don't play a partisan game with the
Supreme Court of the United States of America. It is too serious. It is
too important.
Thank you very much, Mr. Jeffries.
Mr. JEFFRIES. I thank the distinguished chair for pointing out that
this is a simple question for Senate Republicans: Do your job
consistent with your obligations and responsibilities under Article II,
section 2 of the United States Constitution.
The Senate Republicans' failure to act or consider any nominee put
forth by the President of the United States of America is an abdication
of responsibility, a dereliction of duty, and it would be a stunning
act of legislative malpractice that undermines the rule of law, the
Presidency, the Supreme Court, the United States Constitution, as well
as the American people.
I am thankful now to be joined by someone who is a powerful voice for
the voiceless here in the House of Representatives, who has ably served
her constituents in northern California and consistently fought for a
fair, equitable society. Let me now yield to my good friend, the
distinguished gentlewoman from California, Representative Barbara Lee.
Ms. LEE. Mr. Speaker, let me thank the gentleman from New York for
yielding, but also for his tremendous leadership.
You and Congresswoman Joyce Beatty from Ohio really have sounded the
alarm, beat the drum, and really brought to the American people the
important issues that we are dealing with each and every day, so I just
have to thank you for your diligence and for staying the course. Every
week you are here, you are representing not only this Congress, but the
country very, very well. So thank you.
Mr. Speaker, I rise today with all my colleagues from the
Congressional Black Caucus, with our whip, Mr. Hoyer, and others to
urge our Republican colleagues in the Senate to, of course, do your
job.
Also, let me just remind us, once again, the President is trying to
meet his constitutional obligation once again. He is trying to do what
he is supposed to do, and that is to nominate Justice Scalia's
replacement to our Nation's highest Court. And Senate Republicans have
a constitutional responsibility to give the President's nominee a
speedy and fair hearing, followed up with a simple up-or-down vote.
Sadly, these Senate Republicans said ``no'' to their constitutional
responsibility. The Supreme Court has a huge responsibility of deciding
cases that impact every aspect of American life, from our elections,
college admissions, to scientific patents and a woman's right to make
her own healthcare decisions. It is imperative that the Supreme Court
be allowed to function in its full capacity with nine Justices.
Former Supreme Court Justice Sandra Day O'Connor, who was appointed
by a conservative President, President Ronald Reagan, did not mince
words in her condemnation of Republicans playing politics with the
Court. She said: ``We need somebody in there to do the job and just get
on with it.''
Former Justice O'Connor, I could not agree more.
Despite the calls for action and a constitutional mandate, Senate
Majority Leader Mitch McConnell of Kentucky has said that there will be
no hearings, no votes, not even a meeting with President Obama to
discuss the late Justice Scalia's replacement.
That is just wrong. His actions prompted The New York Times to
editorialize that he ``seems to have lost touch with reality and the
Constitution,'' speaking of Majority Leader Mitch McConnell.
Mr. Speaker, I include in the Record a couple of New York Times
articles.
[From the New York Times, Feb. 17, 2016]
Blacks See Bias in Delay on a Scalia Successor
(By Maggie Haberman and Jonathan Martin)
Charleston, SC.--As he left Martha Lou's Kitchen, a soul
food institution here on Wednesday, Edward Gadsden expressed
irritation about the Republican determination to block
President Obama from selecting Justice Antonin Scalia's
replacement on the Supreme Court.
``They've been fighting that man since he's been there,''
Mr. Gadsden, who is African-American, said of Mr. Obama,
before pointing at his forearm to explain what he said was
driving the Republican opposition: ``The color of his skin,
that's all, the color of his skin.''
When Senator Mitch McConnell of Kentucky, the majority
leader, said after Mr. Scalia's death on Saturday that the
next president, rather than Mr. Obama, should select a
successor, the senator's words struck a familiar and painful
chord with many black voters.
After years of watching political opponents question the
president's birthplace and his faith, and hearing a member of
Congress shout ``You lie!'' at him from the House floor, some
African-Americans saw the move by Senate Republicans as
another attempt to deny the legitimacy of the country's first
black president. And they call it increasingly infuriating
after Mr. Obama has spent seven years in the White House and
won two resounding election victories.
``Our president, the president of the United States, has
been disrespected from Day 1,'' Carol Richardson, 61, said on
Wednesday as she colored a customer's hair at Ultra Beauty
Saloh in Hollywood, S.C., a mostly black town near
Charleston. ``The words that have been said, the things the
Republicans have done they'd have never have done to another
president. Let's talk like it is, it's because of his skin
color.''
[[Page H1041]]
Reflecting on the Supreme Court vacancy, Bakari Sellers, a
former state representative from Denmark, S.C., likened the
Senate treatment of the president to the 18th century
constitutional compromise that counted black men as
equivalent to three-fifths of a person.
``I guess many of them are using this in the strictest
construction that Barack Obama's serving three-fifths of a
term or he's three-fifths of a human being, so he doesn't get
to make this choice,'' Mr. Sellers said. ``It's
infuriating.''
The anger and outrage that Mr. McConnell's position has
touched off among African-Americans could have implications
for the presidential election. Leading African-American
Democrats are trying to use it to motivate rank-and-file
blacks to vote in November, the first presidential election
in a decade in which Mr. Obama will not be on the ballot and
in which Democrats fear black participation could drop.
``Anger becomes action when it's directly tied to a moment,
and the moment now is the election on Nov. 8,'' said Stacey
Abrams, a Democratic state representative from Georgia and
the House minority leader there, adding that Mr. Scalia's
death meant that this presidential campaign could no longer
be construed as a mere ``thought exercise.''
For Hillary Clinton, who is increasingly relying on
nonwhite voters to ensure her success against Senator Bernie
Sanders of Vermont, the court issue could be especially
crucial. Should she defeat Mr. Sanders, who has electrified
many liberals, she will need a motivating issue to bring Mr.
Obama's loyalists to the polls. She moved swiftly Tuesday to
tap into the anger of blacks over the opposition of Senate
Republicans to Mr. Obama's naming a replacement for Justice
Scalia.
``Now the Republicans say they'll reject anyone President
Obama nominates no matter how qualified,'' Mrs. Clinton said
in remarks before a predominantly black audience in Harlem.
``Some are even saying he doesn't have the right to nominate
anyone! As if somehow he's not the real president.''
Doing so, Mrs. Clinton added, is in keeping with a
longstanding pattern of mistreatment.
``They demonize President Obama and encourage the ugliest
impulses of the paranoid fringe,'' she said. ``This kind of
hatred and bigotry has no place in our politics or our
country.''
Republicans are especially sensitive about the notion that
they are diminishing Mr. Obama because of his race, and
spokesmen for several Republican senators, including Mr.
McConnell and Senator Tim Scott of South Carolina, declined
to comment or would not make the senators available for
comment.
The suggestion that racism is playing a role angers Mr.
McConnell's friends, who point out that his formative
political experience was working for a Republican senator who
supported civil rights, that he helped override President
Ronald Reagan's veto of sanctions against the apartheid
government in South Africa and that he is married to an
Asian-American woman.
But in the aftermath of Mr. McConnell's statement on
Saturday, a growing chorus of black voices is complaining
that such a refusal to even consider a Supreme Court nominee
would never occur with a white president.
``It's more than a political motive--it has a smell of
racism,'' said Representative G. K. Butterfield, Democrat of
North Carolina, the chairman of the Congressional Black
Caucus.
``I can tick instance after instance over the last seven
years where Republicans have purposely tried to diminish the
president's authority,'' Mr. Butterfield said. ``This is just
really extreme, and leads me to the conclusion that if this
was any other president who was not African-American, it
would not have been handled this way.''
Even as Mr. Obama's popularity has risen and fallen, his
base of support among black voters has been unshakable. A
Gallup tracking poll this month showed that some 85 percent
of African-Americans approved of the president's performance
compared with only 36 percent of whites. And many African-
Americans strongly identify personally with Mr. Obama, and
have watched his tenure with pride.
Mr. Butterfield said that he believed that the effort to
undermine, and even delegitimize, Mr. Obama began soon after
he was sworn in, and that Congressional Republicans had
blocked Mr. Obama's agenda wherever they could. Even more
stinging were the suggestions from some on the right that Mr.
Obama, a Christian, is actually a Muslim and that he was not
born in the United States.
In interviews, members of the Congressional Black Caucus
also bitterly recounted indignities, such as demands--most
pointedly from the current Republican front-runner in the
polls, Donald J. Trump, in 2011--that Mr. Obama prove he was
born in Hawaii, and not in Kenya, as some critics claimed.
Others recalled the calls to impeach Mr. Obama over his use
of executive authority.
``You hear the thing about: `He's not a citizen. He
oversteps his bounds. He's divisive.' One thing after
another,'' said Representative Marcia L. Fudge, Democrat of
Ohio. ``This has been going on since the day he was elected
in 2008.''
Republicans have had more success than Democrats in recent
decades galvanizing their voters over who should control the
courts. But Jennifer McClellan, a member of the Virginia
House of Delegates and the Democratic National Committee,
said the dispute over how to replace Justice Scalia could now
become ``an issue for the average citizen.''
Ms. Abrams agreed, saying the Supreme Court and its
powerful influence on people's lives is especially resonant
with blacks. ``Congress is denying our president his rights
as a president, but, more than that, they're denying the
legacy of his presidency,'' she said. ``That will animate
Democratic voters across the board but especially African-
Americans, who realize more than many voters how great an
impact the Supreme Court can have on freedom.''
____
[From the New York Times, Feb. 24, 2016]
Senate Republicans Lose Their Minds on a Supreme Court Seat
(By the Editorial Board)
Following the death of Justice Antonin Scalia, Senate
Republicans apparently believe they can profit by creating a
political crisis that the nation has never seen before. On
Tuesday, the leadership doubled down on its refusal to take
any action on any nominee from President Obama to replace
Justice Scalia.
Senator Mitch McConnell of Kentucky, the majority leader
who seems to have lost touch with reality and the
Constitution, accused Mr. Obama of plunging the nation into a
``bitter and avoidable struggle'' should he name anyone to
the court.
Forget an up-or-down vote on the Senate floor. Top
Republicans are pledging not to hold hearings or even to meet
with a nominee.
In a statement dripping with sarcasm, Mr. McConnell said
that Mr. Obama ``has every right to nominate someone,'' and
``even if doing so will inevitably plunge our nation into
another bitter and avoidable struggle, that is his right.
Even if he never expects that nominee to actually be
confirmed but rather to wield as an electoral cudgel, that is
his right.''
Senator John Cornyn of Texas, the majority whip, said, ``We
believe the American people need to decide who is going to
make this appointment rather than a lame-duck president.''
These statements are so twisted that it's hard to know
where to begin. Let's take them one by one.
First, Mr. Obama is not a ``lame-duck president.'' The
lame-duck period is broadly understood to run from after the
November election until a new president is inaugurated in
January. November is more than eight months off. Based on the
average number of days it has taken the Senate to act on
previous Supreme Court nominees, the seat could be filled by
this spring.
Second, no matter how often Republicans repeat the phrase
``let the people decide,'' that's not how the system works.
The Constitution vests the power to make nominations to the
court in the president, not ``the people.'' In any case, the
people have already decided who should make this appointment:
They elected Mr. Obama twice, by large margins.
Third, it is preposterous to accuse Mr. Obama of causing a
``bitter struggle'' by nominating someone who will not be
confirmed. The only reason a nominee would not be confirmed
is that the Senate has pre-emptively decided to block any
nominee sight unseen. Mr. Obama is once again the only adult
in the room, carrying out his constitutional obligation while
Senate Republicans scramble to dig up examples of Democrats
trying to block nominees. But those examples show only that
Democratic senators have pushed hard for Republican
presidents to pick ideologically moderate nominees. Until
now, neither party has ever vowed to shut down the nomination
process entirely, even before it has begun.
Only two Republican senators, Mark Kirk of Illinois and
Susan Collins of Maine, were brave enough to say that they
would vote on President Obama's nominee. This is what passes
for moderation in today's G.O.P.: simply stating a
willingness to do the job you were elected to do.
Unfortunately, for too many Republicans moderation now
equals apostasy. These Republicans have stubbornly parked
themselves so far to the right for so many years that it is
hard to tell whether they can hear how deranged they sound.
The truth is they are afraid--and they should be. They know
Mr. Obama has a large pool of extremely smart and thoroughly
mainstream candidates from which to choose a nominee. They
know that if the American people were allowed to hear such a
person answer questions in a Senate hearing, they would
wonder what all the fuss was about.
So Mr. McConnell and his colleagues plan to shut their
doors, plug their ears and hope the public doesn't notice.
The Republican spin machine is working overtime to
rationalize this behavior. Don't be fooled. It is panic
masquerading as strength.
Ms. LEE. One of the titles of these articles is ``Blacks See Bias in
Delay on a Scalia Successor.'' The other is The New York Times article,
``Senate Republicans Lose Their Minds on a Supreme Court Seat.''
Likewise, Judiciary Committee Chair Charles Grassley of Iowa led a
letter to the majority leader signed by all the Republican Committee
members confirming their resolve to not have hearings or a vote on the
nominee.
[[Page H1042]]
This is downright ludicrous. Republicans cannot and should not use
the Supreme Court to push their radical political agenda.
The Constitution is clear, Mr. Speaker. Article II, section 2, ``He
shall have power, by and with the advice and consent of the Senate . .
. shall appoint ambassadors, other public ministers and consuls, Judges
of the Supreme Court.''
Nowhere in the Constitution does it say, ``except in an election
year'' or ``except when the President is a Democrat'' or ``when
Republicans have spent the last 7 years actively working to subvert
every policy proposed by a President elected by nearly 70 million
Americans.'' The Constitution doesn't say that. This is simply
unacceptable, and the American people deserve better.
For more than a century, every single Supreme Court nominee has
received a vote on the floor of the United States Senate. Just like all
the Presidents before him, President Obama should nominate a Supreme
Court Justice, and the Senate should determine if he or she is fit to
serve on this Nation's High Court.
Instead, Republicans are holding the Supreme Court and the American
people hostage.
Their action, in the words of The New York Times, is simply, ``panic
masquerading as strength.'' The Senate has a responsibility to at least
consider the President's Supreme Court nominee, and by refusing to do
so, they are failing their constituents and their Nation.
So, Mr. Speaker, it is really past time for Majority Leader McConnell
and the rest of the Republican leadership to do their jobs and work
together to get a new Supreme Court Justice. The Supreme Court is way
too important to be used as a political bargaining chip. Enough is
enough.
So, once again, I join my colleagues, Congressman Jeffries,
Congresswoman Beatty, members of the Congressional Black Caucus, and
the American people in saying, ``Do your job.''
Once again, thank you for giving me the opportunity to join with you
tonight.
Mr. JEFFRIES. I thank the distinguished gentlewoman from California
for making several important points as it relates to the absence of any
partisanship exception in the United States Constitution, the absence
of any exception whereby the Senate will do its job unless, of course,
President Barack Obama happens to occupy 1600 Pennsylvania Avenue. I
see that nowhere within the four corners of the United States
Constitution. I don't see an election year exception in the United
States Constitution. So I am perplexed as to what is the situation we
find ourselves in right now.
I thought that I may ask the distinguished gentlewoman, my colleague,
my coanchor from Ohio, to reflect upon, if you might, a few comments
that could shed light on the situation we find ourselves in right now
as it relates to the Supreme Court vacancy made by Senate Majority
Leader Mitch McConnell over the years during his time here in Congress.
In 1986, Mitch McConnell said: ``I believe that a heavy burden must
be met by those who would have this nominee rejected. Under the
Constitution, our duty is to provide advice and consent to judicial
nominations, not to substitute our judgment for what are reasonable
views for a judicial nominee to hold.'' That was in 1986.
Then in 1990, he said: ``It is clear under our form of government
that the advice and consent role of the Senate in judicial nominations
should not be politicized.'' That was Mitch McConnell in 1990.
In 2005, he said: ``Our job is to react to that nomination in a
respectful and dignified way, and at the end of the process, to give
that person an up-or-down vote as all nominees who have majority
support have gotten throughout the history of the country.''
I am trying to figure out what has changed, Representative Beatty.
Mrs. BEATTY. Thank you so much, Congressman Jeffries.
Hearing you quote those things, three things come to mind. First, let
me say that Congressman Steny Hoyer was absolutely right when he says
that this issue of not filling the vacancy is not related to only one
group. So I want to say, after hearing what you said and many others of
our members of the Congressional Black Caucus, it is important for us
to know why we are calling on the Senate Republicans to do their job,
and that is because we are the voice for those who are not often
represented. We are the voice for those when you talk about issues
related to women and women's rights, when you talk about issues that
are related to things that affect you and me, and when you talk about
the article that Congresswoman Barbara Lee entered into the Record,
``Blacks See Bias in Delay on a Scalia Successor.''
Now, that article says it all. That article specifically states that
many folks believe, in this wonderful America that we live in, that it
is also because of the color of his skin. I think that is another
reason that we come as a strong 46 members of the Congressional Black
Caucus, because the facts work against them.
Think about it. When we look at the number of people who have been
appointed, when we look at the number of days, if you look at since
1975, it has only taken an average of 67 days to confirm a President's
nominee to the Supreme Court. The Senate has never taken more than 125
days to vote on a Supreme Court nominee, and there are 325 days left in
President Obama's term.
{time} 2000
Since the early 1900s, six Supreme Court Justices have been confirmed
in an election year. When I think about your question and I think about
your sharing with us some of the comments that Senate Majority Leader
Mitch McConnell has said, let me add this one to the Record. And it is
something he got right.
He said that the American people should have the right to choose the
President who will pick the next Supreme Court Justice deciding the
future balance of the Nation's highest court. Well, he got that right.
Because you know what. The people did pick the President when they
picked President Barack Obama in 2012, who won the election by 5
million votes.
I am calling on him and the Senate Republicans to do their job, to
allow the President to do what the Constitution tells us, to allow the
President, who has already said that he is going to bring somebody who
is full of scholarship, he is going to bring someone who is committed
and capable to doing the people's work--I wanted to add that to your
statement and share with everyone tonight that is why we are here.
Mr. JEFFRIES. I really appreciate that.
As we are simply trying to point out, all we are asking for is for
the Senate to adhere to its constitutional responsibilities and, when
the President sends forth a nominee, to conduct a rigorous hearing
process before the American people and then, at the end of that
process, provide that nominee with an up-or-down vote before the
Judiciary Committee and then, ultimately, the floor of the United
States Senate.
Now, I have been in this institution for a little over 3 years. If I
had a dollar for every time some of my colleagues mentioned strict
adherence to the United States Constitution, I would be a billionaire
right now. For the life of me, I can't understand what is so
complicated about this particular issue.
As Representative Beatty so ably pointed out, from this moment, there
are 325 days remaining in the Presidency of Barack Obama.
As this chart illustrates, if you just take a look at the current
occupants of the Supreme Court, Justice Roberts, the Chief Justice, the
most important position on the Supreme Court, a 23-day confirmation
process; Justice Scalia, confirmed in 85 days; Justice Kagan, 87 days;
Justice Sotomayor, 66 days; Justice Ruth Bader Ginsburg,
a/k/a the notorious RBG--one of my personal favorites--50 days; Justice
Clarence Thomas, 99 days.
You can add some of these confirmation periods together and you still
wouldn't get to 325. So what is the problem?
Mr. Speaker, how much time do I have remaining on my Special Order
today?
The SPEAKER pro tempore. The gentleman from New York has 12 minutes
remaining.
[[Page H1043]]
General Leave
Mr. JEFFRIES. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include any extraneous material on the subject of this Special
Order.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. JEFFRIES. Mr. Speaker, one of the concerns that I think we in the
Congressional Black Caucus have as it relates to the Presidency of
President Obama--and Representative Beatty pointed this out--is that
there is a feeling in many corners of America that this President is
treated differently.
I am not sure if it is because there are some people here in the
Capitol who have something against folks from Hawaii. I am not sure if
it is his Kansas roots. I don't know if they dislike the fact that he
was a community organizer in terms of one of the jobs that he held
after school.
I don't know if they dislike the fact that he is so well educated
from Columbia and Harvard Law Schools. I don't know if it is the fact
that he was the President of the Harvard Law Review or a constitutional
law professor at the University of Chicago Law School, one of the top
five law schools in this country.
I don't really know what it is about Barack Obama that they want to
treat him differently than almost any other President who has served at
1600 Pennsylvania Avenue. I am trying to figure it out. What is it
about Barack Obama that he has to be treated with such disrespect?
The amazing thing to me is that they have actually failed to stop
this President. They gave him no assistance as it relates to trying to
turn the economy around.
He inherited a train wreck from George W. Bush and has gotten the
economy back on track. Not a single Member from the other side of the
aisle voted for the stimulus package, which was necessary to stabilize
the economy and then build it up.
There was 71 consecutive months of private sector job creation, and
14 million-plus private sector jobs were created under this Presidency.
The unemployment rate has gone from over 10 percent to under 5 percent.
The stock market has gone from 6,000 to over 16,000.
The deficit has been reduced by more than $1 trillion. Gas prices are
below $2 per gallon. More than 18 million previously uninsured
Americans now have health coverage.
Not a single one of those accomplishments occurred with a vote from
the other side of the aisle. What is it about this President that they
don't like?
Now, in his final term--and, by the way, speaking to strict
constructionists--when you look at the United States Constitution, I
can't find a 3-year term. I can't find it. It is a 4-year term with 325
days left.
All we are asking is that they just do their job. It is pretty
simple. Give whoever the President puts forth a fair hearing. They have
the votes to defeat any of his nominees.
Let me ask my colleague from Ohio. What I haven't been able to
understand is this Justice who I have disagreed with on many issues.
Although he was strong--Justice Scalia--on the privacy rights of the
American people, the Fourth Amendment--was concerned about the
criminalization of politics, these are areas where there is some common
ground.
And certainly he was a giant in terms of legal thought. The news of
his demise was barely out for public consumption when Mitch McConnell
issued a statement saying: We are not considering anyone that President
Obama puts forth.
How do you explain that? How do you interpret that reaction? We
couldn't even respect the death of Justice Scalia before the vacancy
was politicized, before he was even buried and funeralized.
Mrs. BEATTY. Congressman Jeffries, I think you answered that question
for me when you gave the long list of successes that this President has
done without their help.
That gave me pause to think: What is it that is keeping them from
doing their job? Why is it that they are so threatened?
Maybe it is the success that this President has brought forth not for
you and I, not for the 435 Members of us, but he has done this for this
Nation. He has made it a better place.
When we look at what the Justices do and represent, when we think
about liberties and freedoms and the economy and our rights, I think
they are afraid that he will appoint someone who will have that same
scholarship, who will have that same success, someone who will bring
balance. I think they are afraid of the balance.
In the words of another one of our colleagues, I might add, from the
great State of Ohio, Congresswoman Marcia Fudge, former chair of the
Congressional Black Caucus--she has words that she is entering, but I
would like to quote from her words to remind us why we are saying:
Senate Republicans, do your job.
She reminds us, as Members of Congress, we made a promise to our
constituents that we would faithfully discharge the duties and the oath
of office which we took, which we were elected to. She reminded me in
her words that it is so important for us to say tonight to the Senate:
Do your job. Do your job.
I think they are afraid. So I am going to issue a challenge.
Congresswoman Barbara Lee said that you are here tonight initiating
this topic because we are sounding the alarm, we are ringing the bell.
I challenge them to answer that question. I challenge them to share
with not only the Congressional Black Caucus, not only the Members of
Congress, not only the Members of the Senate, but they have an
obligation to America, to the citizens of these United States, Mr.
Speaker, for them to tell us why they are not doing their job.
Mr. JEFFRIES. I thank the distinguished gentlewoman for those very
powerful words. I can only hope, as we close this Special Order hour,
that our colleagues from across this Capitol will see fit simply to
adhere to their constitutional responsibilities to consider any nominee
put forth by President Obama comprehensively and fairly and to
faithfully execute those obligations consistent with their oath of
office, not for the good of this President, not for the good of this
Article I Congress, but for the good of the United States of America.
I yield back the balance of my time.
____________________