[Congressional Record Volume 162, Number 32 (Monday, February 29, 2016)]
[Senate]
[Pages S1069-S1071]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FILLING THE SUPREME COURT VACANCY
Mr. BROWN. Madam President, in the last 2 minutes I would like to say
a few more words about the Supreme Court vacancy.
Four former U.S. attorneys from Ohio, Washington State, California,
and Virginia published an op-ed that went around the country urging the
Senate to promptly consider a Supreme Court nominee to replace Justice
Scalia.
I ask unanimous consent to have printed in the Record the writings of
the former U.S. attorneys.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Steve Dettelbach, Jenny Durkan, Melinda Haag and Tim Heaphy
are Democratic former U.S. attorneys for, respectively,
Northern Ohio, Western Washington, Northern California and
Western Virginia. As former U.S. attorneys in diverse
districts that are home to more than 20 million Americans, we
urge that the president promptly nominate, and the Senate
promptly consider, a Supreme Court nominee to replace Justice
Antonin Scalia. Both the plain language of the Constitution
and plain truths regarding public safety and national
security demand that result.
For federal prosecutors, agents and criminal
investigations, a year is a lifetime. We have seen real
threats, whether it is the heroin epidemic or the threat of
ISIS recruitment, facing the people in our communities each
day.
While law enforcement stands ready to protect the public
from those threats, they need to know the rules of the road.
Uncertainty about those rules impedes their efforts. Just as
with the economy, uncertainty prevents good agents and
prosecutors from deciding on investigative strategies and
tactics, and making important charging decisions. The Supreme
Court is the ultimate arbiter of the hardest and most
important questions facing law enforcement and our nation.
[[Page S1070]]
Even as we write today, unsettled legal questions regarding
search and seizure, digital privacy and federal sentencing
are either pending before the Supreme Court or headed there.
It is unfair and unsafe to expect good federal agents, police
and prosecutors to spend more than a year guessing whether
their actions will hold up in court. And it is just as unfair
to expect citizens whose rights and liberties are at stake to
wait for answers while their homes, emails, cell phones,
records and activities are investigated. Equally important,
as lawyers and former public officials committed to the
Constitution and the rule of law, it is incredible to us that
anyone who claims fidelity to those ideas can argue that
either the president or the Senate should not fulfill their
duties. And we should be clear on what those duties are.
Announcing ahead of time that the Senate will reject any
nominee, or refusing to hold fair hearings, does not fulfill
the Senate's duty to provide ``advice and consent'' on court
nominees. The ``advice'' called for in the Constitution does
not include, ``Just forget it, Mr. President.''
It is ironic that the arguments being made by those urging
a year-plus delay are precisely the types of arguments that
Scalia abhorred. They are based on politics and some vague
notions of Senate ``interpretations'' of the Constitution. As
U.S. attorneys we were constantly assessing the strength of
constitutional and other legal arguments. And there was no
more demanding jurist than Scalia when it came to supporting
those arguments with written law.
One argument is based on the ``Thurmond rule,'' named for
the former senator from South Carolina, which calls for no
confirmations in the final months of a president's term. But
this ``rule'' has never been applied to the Supreme Court and
it finds no home in the text of the Constitution. We would
all have bought tickets to see Scalia question a lawyer who
dared to raise an argument like that. Few things in the
Constitution seem as unambiguous as term length. The
president is elected for four years under Article II. There
is no clause diminishing the president's duties in the last
year, and as even Jeb Bush acknowledged, such notions are
dangerous.
Should the president stop fighting ISIS in his last year?
Should senators facing an election year not be allowed to
vote on judicial nominees so that the ``people can decide?''
Certainly not. The people already did decide what would
happen from January 2013 to January 2017. They elected
President Obama. In both our communities and court system, we
don't have more than a year to blithely waste for political
reasons. The safety concerns and dangers are pressing, and
our leaders in the White House and the Senate do not have
built-in vacation time on our dime.
Mr. BROWN. I close just begging, urging, imploring, and beseeching my
colleagues on the Republican side to move forward on the Supreme Court
nominee.
We have not had a Supreme Court vacancy for as long as a year since
the Civil War because we were at war in the 1860s. The average
nomination process for confirming a Supreme Court nominee when there
are 8 members of the Supreme Court is only about 6 weeks. The longest,
Justice Thomas, took 99 days. The President of the United States is
elected for 4 years--not a 3-year term. A 4-year term has 300-plus days
in the term.
This Senator is disappointed--I will leave it at that--to hear that
my colleagues have said there will not be hearings. Then they said that
not only will there not be hearings for the President's nomination,
they will not even meet with a nominee. This Senator finds it rather
shameful for an institution with this kind of heritage and this kind of
reputation that we don't do better than that. I urge my colleagues to
do our jobs, do what we were elected to do, what we were sworn in to
do, and do what we are paid to do to bring this nominee--vote against
them if you like but bring up this nominee for real Senate
consideration.
I yield the floor, and I thank Senator Grassley for allowing me more
time.
The ACTING PRESIDENT pro tempore. The Senator from Iowa.
Mr. GRASSLEY. Well, Madam President, it is another day and another
tantrum from the minority leader, but it doesn't matter how much the
minority leader jumps up and down or how much the minority leader
stomps his feet, we aren't going to let liberals get away with denying
the American people an opportunity to be heard. Letting the American
people decide this question is a reasonable approach, it is a fair
approach, and it is the historical approach. It is the approach the
other side advocated when the shoe was on the other foot, and it is
what the American people deserve.
They deserve an opportunity and responsibility that we do it right
instead of rushing to judgment. Voters deserve the right to be heard.
The American people want a reasonable justice, a person who will make
the right decisions.
As the American people continue voting during the Presidential
election, they face a choice: Do they want just another Justice who
will look to her heart and apply her own ethics and perspective when
deciding important constitutional questions that impact every American
or do they want a Justice who, like Justice Scalia, adheres to the
Constitution and the rule of law and decides cases based on wherever
the text takes him or her. We can't overstate how critical it is for
the American people to understand what is at stake in this debate.
Today take a little bit of time to discuss the impact that these two
different visions would have on everyday Americans. Many leading Court
observers believe that adding yet another liberal Justice to the Court
whose decisions are unmoored from the constitutional text would lead to
major changes in the Court's jurisprudence. As a recent New York Times
article put it, adding another liberal to the Supreme Court ``would be
the most consequential ideological shift on the Court . . . creating a
liberal majority that would almost certainly reshape American law and
American life.''
So it will impact all of us. According to the same article, a host of
Supreme Court precedents on free speech, freedom of religion, the right
to keep and bear arms, the death penalty, and abortion would be
overturned. The article speculates that ``abortion rights would become
more secure, and gun rights less so. . . . First Amendment arguments in
cases on campaign finance, public unions, and commercial speech would
meet a more skeptical reception.''
In that same article, one law school dean noted that with another
liberal on the Court, ``the judicial debate over the fundamental
possibility of ObamaCare would likely draw to an end.'' So let's
consider just a few of the Supreme Court precedents that would likely
be overturned with another liberal Justice on the Court.
First and foremost, it is our Second Amendment rights that would fall
squarely within the liberals' sights. The Heller decision, authored by
Justice Scalia, recognized, based on the intent of the Framers, that
the Second Amendment guarantees an individual constitutional right to
gun ownership.
Again, as one law professor noted in the New York Times, with another
liberal in the Court, ``The five would narrow Heller to the point of
irrelevancy.'' Another said: ``If we got a fifth liberal on the court,
the pendulum would swing pretty quickly on gun control. . . . I expect
that we'd see a major shift in the kind of gun control laws that get
approved by the court.''
In other words, Heller and the individual constitutional rights it
guarantees would be turned into a relic. It would be an ornament
without any practical limiting effect on the government's infringement
upon the constitutional right of an individual to have gun ownership.
Once this happens, all bets are off on the right to keep and bear arms.
Next, the First Amendment right of the American people to make their
voices heard would be drastically curtailed if the Court overturns
Citizens United. In fact, as a University of Chicago Law School
professor said in the New York Times, ``Citizens United is on every
liberal's list of opinions that ought to go.''
Freedom of religion protections under the First Amendment wouldn't be
far behind. Another liberal Justice could allow the government to force
Americans to comply with laws that violate their deeply held religious
views. For example, a new Justice could provide the fifth vote to
overturn the Hobby Lobby decision, which recognized the right of the
owners of a closely held corporation to resist laws on religious
grounds, such as ObamaCare's contraception mandate.
Of course, we all know free speech protections are being eroded and
diluted in this country. On college campuses across the country, speech
isn't being protected because of the speaker's viewpoint. Rather than
debate openly with opponents as Justice Scalia did, too many people
today want to shut down debate and muzzle anybody who disagrees with
them.
[[Page S1071]]
What other rights are at stake in this election? Incredibly important
precedents under the First Amendment's establishment clause would be at
risk. Of course, I am talking about Supreme Court cases allowing prayer
at townhall meetings or permitting low-income parents to receive public
school vouchers to defray the cost of the child's private school,
including religious schools. Of course, while yet another liberal
Justice could read narrowly the First and Second Amendments that are in
the Constitution, he or she could read broadly those rights that are
not in the Constitution at all.
If yet another liberal is nominated to the Court, even reasonable
restrictions on abortion enacted into law through the democratic
process would be swept away. Just a few years ago the Court upheld the
ban on partial birth abortion by a 5-to-4 vote in the case of Carhart.
Partial birth abortion is a horrific practice that crushes an unborn
baby's skull, killing it while its head is still in the womb. It is one
very small step short of infanticide. If the American people elect a
liberal during this Presidential election, and that President nominates
another liberal to replace Justice Scalia, we can all expect a
constitutional right to abortion on demand without limitation. In the
words of one law professor, ``At-risk precedents run from campaign
finance to commerce, from race to religion, and they include some
signature Scalia projects, such as the Second Amendment. . . . Some
would go quickly, like Citizens United, and some would go slower . . .
but they'll go.''
The ACTING PRESIDENT pro tempore. The Senator's time has expired.
Mr. GRASSLEY. I ask unanimous consent for 4 more minutes.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. GRASSLEY. That leads me to a broader point. There is more at
stake than the results of any particular case as important as those
cases are. The American people need to consider whether they want their
next Justice to decide cases based on the text of the Constitution as
it was understood at the time it was adopted or whether Justices are
free to update the Constitution according to their own moral and
political philosophies. Should Justices apply accepted legal principles
through sound reasoning of new facts or should they do legal back flips
to reach their desired public policy goals?
Of course, this second approach is not law. Instead, it is what
Justice Scalia called ``legalistic argle-bargle'' and ``jiggery-
pokery.'' Justice Scalia knew the rule of law was a law of rules. The
rule of law is not a law of whatever is in the Justice's heart. When a
Justice believes, as President Obama does, that any time he views the
Constitution as unclear, he can apply his own life experience and
empathy for his or her favorite causes. The Justice has a clear
incentive to think the Constitution is unclear, but a Justice isn't
entitled to read those views into the Constitution and impose them on
the American people. Our Constitution sets up a Republic, not a
government by judiciary.
Unless the Constitution specifically prohibits the democratic process
from reflecting the will of the people, the decisions are made by
elected individuals who are accountable to the voters. The Supreme
Court plays a very important role in keeping the branches of the
Federal Government within constitutional powers, keeping the Federal
and State governments within their constitutional sphere, and it
ensures the government complies with the Bill of Rights. That is the
basis for its legitimacy.
When the Court reads the Constitution in ways that reflect the
Justice's personal policy views rather than the text, it does not act
legitimately. Instead, it denies the people the legal right to govern
themselves. Justice Scalia understood this better than anyone. The more
the Court reaches out and grabs power it is not entitled to hold, the
more it legislates from the bench, the more decisions it robs from the
American people.
As a direct result, step-by-step and inch-by-inch, liberty is lost.
As John Adams observed, ``Liberty, once lost, is lost forever.''
Since the days of the Warren Court, this is what liberal Justices
have done. Under the guise of constitutional interpretation, they have
imposed liberalism on the American people. They have done it on issues
and in ways they couldn't achieve through the ballot box.
This is the decision facing the American people during this
Presidential election. If the American people elect a liberal as their
next President, and he or she nominates a like-minded judge to replace
Justice Scalia, liberalism will be imposed on the American people to a
degree this country has never before witnessed. I hope anyone who cares
about these important issues will take very serious note.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Nebraska.
____________________