[Congressional Record Volume 162, Number 38 (Wednesday, March 9, 2016)]
[Senate]
[Pages S1353-S1354]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FILLING THE SUPREME COURT VACANCY
Mr. COTTON. Mr. President, there is a vacancy on the Supreme Court,
and this Chamber and the American people must fully understand what is
at stake in choosing the person to fill that vacancy. For a generation,
Justice Nino Scalia was the conservative heart of the Supreme Court.
Whoever takes his seat will not replace him because there is no
replacement, but his passing has the potential to dramatically shift
the delicate balance of the Court. Should Justice Scalia be replaced by
a philosophically liberal Justice, the implications for the rights of
Americans and the direction of our Nation would be profound.
A liberal Justice may mean that the individual right to keep and bear
arms will be nullified and laws that deprive Americans of the means to
protect themselves and their families will proliferate. A liberal
Justice may mean that the President's extraconstitutional Executive
order to grant amnesty to illegal immigrants will be upheld, trampling
the separation of powers and the will of the American people. A liberal
Justice may mean that President Obama's plan to destroy America's coal
industry will survive, destroying thousands of jobs and steady income
for American families.
A liberal Justice may mean that the government will be empowered to
force people of faith to violate their deeply held beliefs to subsidize
abortifacients they abhor, and these are only the issues we can
foresee. Novel issues that strike at the core of our constitutional
order will continue to arise and how they are settled will hinge
greatly on the next Justice. Because so much depends on who the next
Justice is, we cannot rush into this decision. Because the law may take
such a dramatic turn, the Members of this Chamber must first get the
input of the American people on what the direction of our country
should be, and because the next Justice will guide American law for the
next generation, the Senate should not subordinate our constitutional
responsibility to advise and consent on a Supreme Court nominee to a
lameduck President with a stale mandate.
This is the way forward that the majority leader and Chairman
Grassley have charted, and it is the right one. After all, we have an
election in November. In a few short months, we will have a new
President and new Senators who can consider the next Justice with the
full faith of the American people.
Why would we cut off the national debate about this next Justice? Why
would we squelch the voice of the people? Why would we deny the voters
a chance to weigh in on the makeup of the Supreme Court? There is
absolutely no reason to do so or at least no principled reason to do
so. That is why no Congress in our history has confirmed a Supreme
Court nominee of a lameduck President of either party for a vacancy
that arose in an election year.
Abiding by this practice this year is even more pressing. Some of my
Democratic colleagues argue that the American people have already
weighed in on the Supreme Court by reelecting President Obama in 2012,
but I will remind those who make this argument that the Constitution
requires two institutions, the President and the Senate, to agree upon
a new Justice, and in 2014 the voters overwhelmingly chose to send
Republicans to the Senate, making clear their dissatisfaction with this
President's cavalier attitude toward the Constitution and his duty to
execute the laws as written. If the 2014 election meant anything, it
meant that Americans do not want this President to determine alone the
course of American law for a generation in the Supreme Court. When
Arkansas elected me in 2014 to represent them, they sent me to
Washington with the mandate to act as a check on the President, and I
will carry out that mandate.
Many of my Democratic colleagues have come to this floor to demand
that the Senate's longstanding practice of declining to confirm Supreme
Court Justices in an election year be discarded and a nominee
considered right away. Perhaps the most impassioned of these pleas come
from the senior Senator from Nevada; that the minority leader would
wish to discard a longstanding practice of the Senate--particularly one
related to the judicial nominations--is not a surprise. He was, of
course, the person in 2013 who detonated the so-called nuclear option,
discarding the 60-vote threshold for appellate and district court
judicial nominees that existed in this Chamber for 200 years. He did so
in order to steamroll the institutional rights of the minority party
and pack the lower courts with as many liberal Obama nominees as
possible.
In terms of dignity and public esteem, such as he had, that ill-
considered move cost the minority leader dearly. He could only exercise
the nuclear option if he flip-flopped on his prior vehement opposition
to it. In 2005, the minority leader stood steadfastly against the
nuclear option when it served his political interests. He called the
nuclear option wrong, illegal, and even un-American. He was--to adapt a
familiar saying--against the nuclear option before he was for it.
In the current debate over filling Justice Scalia's seat, we are
seeing the minority leader perform a similarly brazen flip-flop, not
that we should be surprised by that. Today the minority leader claimed
that the Constitution compels the Senate to immediately take up any
nominee President Obama sends our way, but 10 years ago, again, he sang
a much different tune. The minority leader came to this very same floor
to speak passionately in defense of the constitutional prerogative of
the Senate to defer a vote on the President's Supreme Court pick. He
forcefully stated that nowhere in the Constitution does it say the
Senate has a duty to give Presidential nominees an up-or-down vote. It
says appointments shall be made with the advice and consent of the
Senate, and that is very different than saying that every nominee
receives a vote.
What has changed in the 10 years since the minority leader uttered
those words? Well, of course, merely the politics of the situation.
I ask, if the current President were a Republican, would the minority
leader be taking the position he is today?
If the current President were not a fellow Democrat, would the
minority leader still be inclined to trash the constitutional
prerogatives of the Senate and abandon its longstanding customs?
In light of what you might call the diversity of the minority
leader's views over time, I think it is understandable that questions
have been raised about the sincerity of his position. In the quiet
moments following the rambling jeremiads that the minority leader
directs at Republicans on the Senate floor, I think my colleagues might
be forgiven if they entertain the thought that the principled ground on
which he claims to stand is slightly less than firm.
In the coming months, there is much work for Congress to do. We must
pass a bill to fund and rebuild our military.
[[Page S1354]]
We must continue to improve the conditions for wage growth and the
creation of new jobs. We must conduct stringent oversight to rein in
the excesses of the President on a quixotic pursuit of a legacy, but
with regard to a Supreme Court nomination, the only task for this
Senate is to wait passionately and listen to the American people.
I yield the floor.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. THUNE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Cotton). Without objection, it is so
ordered.
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