[Congressional Record Volume 162, Number 33 (Tuesday, March 1, 2016)]
[Extensions of Remarks]
[Pages E252-E253]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         SUPREME COURT VACANCY

                                 ______
                                 

                               speech of

                        HON. SHEILA JACKSON LEE

                                of texas

                    in the house of representatives

                       Monday, February 29, 2016

  Ms. JACKSON LEE. Mr. Speaker, sixteen days ago, and just moments 
after learning the sad news that Antonin Scalia, the most senior 
Justice on the Supreme Court, had died in his sleep at the age of 79, 
the Republican Senate Majority Leader, announced emphatically that 
``this vacancy should not be filled until we have a new President.''
  Later that evening, the Senate Majority Leader's position was echoed 
at a presidential primary debate in South Carolina by every Republican 
presidential candidate.
  Justice Scalia may have had many qualities but none endeared him more 
to his admirers on that debate stage and across the country than his 
professed devotion to the rule of law, his exaltation of the doctrine 
of ``original intent,'' and his insistence that the meaning of the 
Constitution is to be divined only from the strictest reading of the 
text.
  Given the praise heaped on Justice Scalia by Republican senators and 
presidential candidates, it is passing strange indeed that they claim 
to be honoring his memory by taking a position that repudiates the very 
principles Justice Scalia devoted his life to advancing.
  Mr. Speaker, so-called ``strict constructionists'' claim that the 
Constitution is to be interpreted according to its literal text.
  Well, there is nothing clearer than the provision in Article II, 
Section 2, which states that the President ``with the advice and 
consent of the Senate, shall appoint ambassadors, other public 
ministers and consuls, judges of the Supreme Count[.]''
  To read the Constitution as containing a limitation restricting the 
President's exercise of this power in the fourth year of his term of 
office would be to treat the Constitution as a ``living document'' and 
to engage in the type of judicial activism that Justice Scalia opposed 
and fought during his 30 years on the Court.
  Indeed, just three years ago, at Southern Methodist University in 
Dallas, Justice Scalia in discussing his judicial philosophy, expressed 
his view of the Constitution: ``It's not a living document. It's dead, 
dead, dead.''
  If it had been the original intention of the Framers to restrict the 
President from nominating Supreme Court Justices to fill vacancies 
occurring in the fourth year of his or her term, they would have 
manifested that intent clearly, explicitly, and unmistakably, as they 
did in conditioning Supreme Court appointments to the advice and 
consent of the Senate and in prohibiting the President from exercising 
the Pardon Power in cases of impeachment.
  Mr. Speaker, disregarding the procedure expressly set forth in the 
Constitution for filling vacancies on the Supreme Court because it may 
not result in the appointment of one's preferred justice makes a 
mockery of the ``rule of law,'' adherence to which is claimed to be the 
most sacred principle of both judicial and political conservatives.
  The bottom line is this: for those who revered Justice Scalia, 
cherish his memory, and wish to do honor to the work of his life, the 
way forward is clear.
  And that is for Republican senators to gladly receive, when it is put 
forward, President Obama's nominee to fill the vacancy left by the 
death of their hero and discharge their constitutional duty to advise 
and consent (or not consent) to the nomination as reflected by an up or 
down vote on the nominee.
  Republican senators protest there is an 80 year precedent against 
confirming a Supreme Court nominee during an election year, and 
besides, there is not sufficient time even if they wished to do so.
  This is a short horse soon curried.
  The most recent instance where there was a vacancy on the Supreme 
Court in an election year occurred not 80 but 28 years ago, in 1988, 
during the administration of President Reagan.
  That vacancy was filled on February 3, 1988 by the appointment of 
Justice Anthony Kennedy, who was confirmed 97-0 by a Democrat-
controlled Senate.
   The Justice Kennedy nomination is the controlling precedent, as 
Justice Scalia would recognize.
  The erudite Justice would say to anyone claiming otherwise, ``Leges 
posteriores priores contrarias abrogant,'' which is Latin for the canon 
of judicial interpretation that ``the last expression of the people 
prevails.''
  There are 326 days left in President Obama's term, which is more than 
sufficient time for the President to nominate, and for the Senate to 
consider and vote to confirm or reject his nominee.
  Since 1900, there have been 60 Supreme Court vacancies.
  The average time taken to fill these 60 vacancies is 73 days, which 
is less than 25% of the time remaining in the President's term.
  The average time to fill each of the 13 vacancies since 1975 is a 
mere 67 days.
  And of the current members of the Supreme Court, the average time is 
74 days, the longest being the 99 days taken to confirm the 
controversial nomination of Justice Clarence Thomas in October 1991.
  Mr. Speaker, as is often noted, elections have consequences; they 
also impose responsibilities and duties.
  And one of the most important duties imposed by the Constitution on 
the President is to nominate persons to fill vacancies on the Supreme 
Court and for the Senate to consider those nominations with dispatch.
  The Supreme Court is the nation's highest court and its essential and 
indispensable role in our constitutional system is to provide 
definitive interpretations of American law and the Constitution.
  Its decisions are the law of the land binding in every state and 
territory.
  The Supreme Court is the only judicial tribunal capable of providing 
the legal clarity and certainty required for the legal system to 
function and give meaning to the rule of law.
  President Obama has announced that he intends to fulfill the 
responsibility devolved upon him by the Constitution and will submit to 
the Senate a nominee to fill the large shoes left by the late Justice 
Antonin Scalia.
  The Senate should fulfill its constitutional duty to advise and 
consent, or withhold its consent, by casting an up or down vote on that 
nomination.
  That is the way to pay fitting tribute to Justice Scalia, to honor 
the Constitution, and to keep faith with the American people.

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