[Congressional Record Volume 162, Number 32 (Monday, February 29, 2016)]
[Senate]
[Pages S1073-S1074]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. CARPER. Madam President, this is a day-night double header. That 
was the day game, and what I want to do now is focus on the second half 
of the story as long as time will allow me to do that.
  As the Presiding Officer knows, I come from the State of Delaware. 
Delaware is noted for a number of things, and one of the things we are 
noted for is that before any other State ratified the Constitution, we 
did it. For 1 whole week, Delaware was the entire United States of 
America. We opened it up and we let in Maryland and New Jersey and 
Pennsylvania, ultimately Iowa and other States, and I think it has 
turned out pretty well most days. But we were the first to ratify the 
Constitution.
  My family and I live in northern Delaware, and just up the road from 
us is Philadelphia. That is where the Constitution was first debated, 
and folks from throughout the 13 Colonies came and argued for and 
against different provisions and how we should set up the structure of 
our government. One of the hardest provisions they argued on and 
debated was whether there should be a legislative branch at all, and if 
there should be, should it just be unicameral--just one entity, one 
body within that legislative branch--or should there be two. Should the 
number of votes and the power that States have be in accordance with 
the size of their State, how many people they have, or how would they 
balance things out.
  Some of them worked out the Connecticut Compromise that said that 
every State will have two Senators--the same number--and they will be 
part of the U.S. Senate, and the House of Representatives would be 
comprised such that the more people who live in a State, the more 
Representatives they would have. That was the Connecticut Compromise. 
It was worked out. It was maybe not a perfect compromise in the eyes of 
some, but it enabled them to move forward, and most people think it is 
fair and reasonable.
  Another really tough issue they wrestled with in those days was with 
respect to the third branch of government. We have the executive and 
the legislative and the judicial branch. The question was, What are the 
judges going to do, these Federal judges? How are they going to be 
appointed? Who is going to pick them? And if it is the Chief Executive 
Officer, should the President be able to name by himself or herself who 
the judges are going to be, the Federal judges and the Supreme Court 
Justices? Should it be left up to the Senate? Should it be left up to 
the House of Representatives? Should it be a joint effort by the House 
and the Senate? Should there be some role for the President, the Chief 
Executive, to play? How should it work out?
  Time and again they voted on this issue at the Constitutional 
Convention in Philadelphia. Finally, after a number of votes that were 
just not successful--they couldn't come to a successful conclusion--
they actually called out for clergy to come in and called on Divine 
intervention to get over this issue on how to pick, how to select 
Federal judges. I don't know if it was Divine intervention, but at the 
end of the day the deal said: The President shall nominate--not 
appoint, not name, but shall nominate--folks to serve as Federal 
judges, including the Supreme Court, and the Senate would have an 
opportunity to provide advice and consent to the President.
  We have argued a lot over the years about what advice and consent 
should be, but it makes very clear that the President has a job to do 
with respect to the naming of judges. I believe we have a job to do as 
well.
  About 300 yards from the tavern where the Constitution was first 
ratified on December 1787 in Delaware, with one hand on the Bible I 
raised my other hand and took an oath to defend the Constitution as 
Governor of Delaware. I had never thought very much about what kind of 
qualities I would look for in a judge.
  With my Republican opponent in the Governor's race, a wonderful guy 
named B. Gary Scott, in 1992, we had 35 joint appearances together, 
debates. In all those forums, no one ever asked: What quality would you 
look for in the people you would nominate to be a supreme court justice 
for the State of Delaware or a member of the court of chancery, which 
is a court that has a national and international role to play?
  The superior court also hears not just Delaware cases but national 
cases as well. In all those forums, nobody ever asked me: What would 
you consider? As it turned out, that was a very important part of my 
job. I am proud to say the Delaware judiciary is one of the highest 
regarded of any State judiciaries that we have. We have a very unusual 
system where there has to be an equal balance between Democrats and 
Republicans on the judiciary. It is not a spoils system. If there is 
one more Republican than a Democrat and there is a vacancy, you have to 
name a Democrat. That is the way the system works.
  When I was Governor, we had a person who had been chancellor of the 
court of chancery, which is a high honor. He decided he was going to 
leave. So we had a vacancy to fill. I named a Republican. In that case, 
I actually had the flexibility to name a Democrat or Republican. I 
wanted to name the best person that I thought was interested in 
serving. The criteria I used in nominating people to serve on the 
judiciary in Delaware was that I wanted people who were really smart. I 
wanted to nominate folks who knew the law. I sought to nominate people 
who embraced the Golden Rule, who treat other people the way they want 
to be treated, so that folks who came before them in a courtroom 
received

[[Page S1074]]

fair and equal treatment. I wanted to nominate people who worked hard. 
I wanted to nominate people who had good judgment. I sought to nominate 
people who were able to make a decision. Sometimes people can have a 
lot of those qualities but have a hard time making a decision. I didn't 
want to do that. I wanted to have people who could do all those things.
  My hope is that this President will look at Democrats, Republicans, 
and Independents and find among them the man or woman who meets all 
that criteria and more. That is the President's job.
  I was up at the Detroit Auto Show. I know the Presiding Officer has a 
lot of assembly and supply operations in his State. Delaware used to, 
until fairly recently, build more cars and trucks per capita than any 
other State. So I care a lot about who is running GM and Chrysler. We 
lost both plants a few years ago when they went into bankruptcy. But I 
still go back to the Detroit Auto Show most years to keep in touch with 
the industry.
  This last January, a month ago, I was in Detroit. It was the opening 
day of the Detroit Auto Show, with tens of thousands of people 
converging on the Detroit Auto Show, going this way and that way to see 
the different reviews and different vehicles, concept cars or new 
production vehicles that are going to be launched maybe later this 
year.
  During the afternoon, I was looking for a restroom. I found one and 
so did hundreds of other people--in and out of this one restroom. I 
noticed an older gentleman who was a custodian standing with his cart, 
his mop and bucket, and his broom, outside of the mass of humanity. I 
walked in. In spite of all of those people, the place was remarkably 
clean.
  I figured he was the janitor who had responsibility for this 
restroom. When I came out, I said to him: I just want to say, sir, that 
this is a really clean restroom. With all the different kinds of people 
you have coming in and out of here, I don't know how you do it. I just 
want to say thank you for doing your job really well.
  He looked me in the eye and said: That is my job. He said: This is my 
job. And he said: I try to do my job well. He said: Everybody has a 
job, and everybody should try to do their job well.
  I thought to myself: Wow, wow, what insight, what a message.
  Under the Constitution, the President has a job. Apparently he is 
moving--not with haste, but I think with dispatch--to try to meet his 
responsibilities. I know we have had any number of times when 
Presidents have nominated Supreme Court Justices in a Presidential 
election year. I know a dozen or more times it has happened. I think 
every single time we had hearings for that nominee. There has been the 
opportunity to debate the nominee, question the nominee, meet with the 
nominee, debate here on the floor, and vote on the nomination up or 
down. I don't know of any time when we have not done that, even when a 
nominee came to us during a Presidential election year.
  I know we are in a crazy election season. It is still 8 months, 9 
months before the election. But I hope that, at the end of the day, 
just like that janitor at the Detroit Auto Show intent on doing his 
job, the rest of us have the feeling that we have a job to do and that 
we should be in town doing our job. We have that need. We have that 
responsibility. I hope we will fulfill it.
  (Mr. COATS assumed the Chair.)
  Mr. President, the other thing I want to say is ``baseball.'' When 
the Presiding Officer and I were House Members together, we used to 
play baseball. We played in the congressional baseball game maybe 10 
years ago--me on the Democratic side, him on the Republican side. For a 
year or two, I was almost selected as the most valuable Republican 
player--and I am a Democrat. So I wasn't always a great player, but I 
gave it my best.
  I was in Florida for an event over the weekend, and last week in 
Florida and Arizona something wonderful happened. What happened was 
that spring training camps opened. Pitchers and catchers reported, and 
then the full teams started to report. When they start the spring 
training games in a day or two--maybe tomorrow--teams will take the 
field and they will take the field with nine players.
  When Justice Roberts was going through his confirmation hearing 
before the Judiciary Committee, he was asked: What is the job of the 
Supreme Court? How would you describe it, in a simple way?
  He said: Our job basically is to call balls and strikes.
  When baseball teams take the field, they have nine players in nine 
positions. When the Supreme Court is in session, they have nine 
justices--or at least they did until the death of Justice Scalia. Just 
like you can't have a baseball team take the field without the 
shortstop or without the catcher or even without the second baseman or 
the center fielder and play well and do their job, at the end of the 
day, the Supreme Court is a team. They need nine--not players but nine 
justices--to be able to do their job well. Let's keep that in mind.
  The last thing I would say is that the American people are frustrated 
with us and our inability to get things done. Sometimes I can 
understand why they would feel that way. We have a great opportunity to 
get something done. I hope the President will nominate a terrific 
candidate, and I hope our Republican friends will at least have the 
courtesy of meeting with that man or woman, give him or her a chance to 
present themselves and explain what they are about, have a hearing on 
that person, and then give them the honor of a vote. I think they 
deserve that.
  Mr. President, I yield the floor for my friend from Vermont, the 
senior Democrat on the Senate Judiciary Committee, Mr. Leahy.

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