[Congressional Record Volume 162, Number 39 (Thursday, March 10, 2016)]
[Senate]
[Pages S1426-S1428]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. TILLIS. Mr. President, I appreciate the opportunity to come to 
the floor and talk a little about the ongoing dialogue we are having on 
the Supreme Court nomination.
  Before I start this speech, I wanted to comment on something for 
those who think all we do is fight here. I think the Presiding Officer 
was at our bipartisan lunch. I think it is a great opportunity. So 
often we see the debate on the floor and the dialogue in the committee 
rooms, but we take the opportunity every month or so and Democrats and 
Republicans come together and we enjoy each other's company. We talk a 
little about policy but more about the folks back home. So I just 
wanted to let the American people know that because we happen to have 
differences, it doesn't mean we don't like and respect so many of our 
colleagues.
  Today, though, I am talking about something that is a point of 
contention between Democrats and Republicans, and it relates to the 
open Supreme Court seat as a result of the tragic passing of Justice 
Scalia. Originally, I was going to come to the floor and provide a 
speech I had prepared, but I was in the Judiciary Committee today and I 
decided--probably against my staff's wishes--to deviate a little from 
the script and to talk about some of the facts that were put forth in 
the Judiciary Committee today.

[[Page S1427]]

  One of the arguments we hear from Members of the Democratic Party is 
that somehow the Supreme Court has been shut down. That couldn't be 
further from the truth. Actually, since the passing of Justice Scalia, 
there have been some 12 arguments heard in the Supreme Court and 5 
opinions. There will be several more.
  As a matter of fact, over the course of history there have been a 
number of instances where the Supreme Court has had Justices recuse 
themselves or Justices go on a leave of absence for another duty. So 
there have been a number of instances where the Court continues to 
function just fine with eight, and sometimes even fewer than eight, 
Justices active in any given opinion. So to say for some reason until 
we make an appointment to the Supreme Court that the Supreme Court is 
going to cease to function defies the facts.
  As a matter of fact, in the October 2014 session--the Supreme Court 
has two sessions, the first half of the year and the second half of the 
year. In October of 2014, there were 72 arguments heard before the 
Supreme Court. There were only 18 of them that actually were divided 
along ideological lines within the Court. So three-fourths of all the 
cases in 2014 were actually settled with significant numbers of people 
joining together to render an opinion. So the Court is working just 
fine, and it will continue to work just fine.
  I would also argue that the idea put forth by some Members that the 
Supreme Court is suddenly going to be shut down for a year defies logic 
and history. The Supreme Court is already in session. They will go 
through probably the end of June or the beginning of July. There is no 
possible way, under normal circumstances, that we would have time to 
appoint a Supreme Court Justice who would be participating in this 
term. So what we are really talking about is the October term. If the 
October term of this year bears any resemblance to the October term of 
2014, there may be 5 or 10 cases where the 9-member Court would be 
material. The vast majority of them are going to move through. That is 
why this idea of shutting down the third branch of government is 
disingenuous and really supporting a political agenda and less about 
whether the government is functioning properly.
  The other thing I wanted to talk about before I get into some of the 
reasons I do not support nomination proceedings going through under 
President Obama is related to some history. Before I get to the history 
that specifically relates to the constitutional obligation of the 
Senate, the Senate rules, and maybe some of the positions that have 
been taken by Members of the minority in the past, I also want to talk 
about one other area that concerns me in this dialogue.
  There has been a discussion about the backroom meetings, making the 
decisions. Well, members meet oftentimes--we tend to meet the majority 
of the time--in public settings, but members got together and we 
decided to come up with a policy that was a clear position that the 
majority of the members of the Judiciary Committee--and the majority of 
the members are today Republicans--that we were going to take on the 
nomination. We all agreed--all 11 of us--that we are not going to move 
forward with the nomination.
  They can call it a backroom deal, but whether you would argue that is 
an improper practice, what I found interesting is that members of the 
Judiciary Committee who brought this up did something that I think was 
a profound show of disrespect to this institution. It happened a few 
years ago, when in a back room the leader of the then-majority, Senator 
Reid, convinced all the members of the Democratic conference to vote on 
the nuclear option. The nuclear option is--well, it is great I guess 
for TV--but structurally the nuclear option is that throughout decades 
there was a 60-vote threshold for moving nominations through the Senate 
unless you had consensus to hold it down to 51 votes. In a back room, 
the then-majority leader, Senator Reid, convinced his conference to 
come to this floor and break the rules to change the rules in order to 
prevent the minority from being able to weigh in on judicial 
nominations and a number of other nominations. In fact, after that rule 
was passed, after that decision was made in a back room and after those 
folks came to the floor and broke the rules to change the rules, they 
ended up confirming judges without any input from the then-minority 
Republicans.
  So when people want to stand up here and say that somehow what we did 
was different, this is one nomination. This is a decision we made about 
one nomination, but we have a group of people--every single person on 
the Judiciary Committee, in fact, who are in the Democratic conference, 
voted to deny the minority from having what has been a decades-old 
tradition in the Senate to have the minority weigh in on nominations.
  I would now like to get to some of the other discussions. First off, 
we have to recognize we are in the throes of the primary season for the 
Presidential nomination. It would be very difficult to live in the 
United States and not know a little about the primary that is going on. 
The people are in a position where, over a very few short months, they 
are going to make a decision. They are going to voice their vote, and 
I, for one, think the people should be allowed to weigh into this 
decision. I do believe many of the Senators on the other side of the 
aisle have felt the same way. In fact, I will go through a couple of 
quotes where they made it very clear. In fact, they are very trained 
and very articulate and can probably voice their position--which now is 
my position--better than I ever could.
  One thing that comes up in this discussion is our constitutional 
obligation, and that is the obligation to advise and consent. Keep in 
mind, the advice and consent is not a constitutional obligation for the 
Senate to rubberstamp the decisions of the President. Quite the 
contrary. The whole idea of the three branches was to have certain 
checks and balances in place. So there absolutely was no concept on the 
part of the Founding Fathers to say when the President makes a 
decision, the Congress will rubberstamp that decision. We then have an 
equal authority to determine whether that nomination will come to a 
nominations process or we will simply decide not to take up the 
nomination.
  Now, a lot of people think that is a new concept, but the reality is, 
it is a concept that has been in place for many years in the Senate 
rules. For people to say we always dispose of nominations in the term 
we are in defies the existence of this rule, which simply says: Should 
the Senate choose not to take up a nomination, then the next President 
will put forth another nomination for consideration.
  Again, I think people are finessing what our responsibilities are and 
whether this is really something different or something that wasn't 
anticipated by the people who have come before us and who established 
the rules that govern the Senate.
  I want to talk a little about what I think must be a very 
uncomfortable place for some Members of the minority to be; that is, 
their own history on the current situation in the Senate. We are in the 
middle of a campaign. We are in the middle of a tough campaign on both 
sides of the aisle, whether it is the Democratic primary or the 
Republican primary. People are engaging in a way they haven't in many 
years. Turnouts in many of the primaries have been more significant 
than they have been in many years. People are watching. So we have an 
opportunity to educate the people on this very important choice in 
terms of a Supreme Court nomination.
  I, for one, think the nomination should be instructed by the vote 
that is cast in November for the President, and, actually, for that 
matter, the Senate congressional elections. Some people say: Well, the 
people have spoken and President Obama was reelected to a second term. 
That is true. And 2 years later the people spoke again, and I was 
elected to the Senate and Republicans were brought to a majority. So 
the people spoke in a different way. Just a few months from now we will 
get the most up-to-date read of where the American people are, who they 
want to lead the country, and who they want to nominate as the next 
Supreme Court Justice.
  This quote has been famously reported in the press, and I couldn't 
say it any better than then-Senator Biden did. He talked about the 
need, at a certain point in time during the political

[[Page S1428]]

process, to set things aside, let the people speak, and let that be 
instructive to the Supreme Court nomination.
  Incidentally, I know the Vice President, at the time he made this 
quote, was the chairman of the Judiciary Committee, the position 
Senator Grassley currently holds. He was basically saying what Senator 
Grassley has said and that I fully support. So I think Vice President 
Biden was right the first time. He seems to be stepping back on his 
words, but I don't think his words can be parsed. They were pretty 
well-articulated right here on the Senate floor.
  Then we come to the minority leader. We now have the minority leader 
and others coming to the floor talking about what our constitutional 
duty is, but the minority leader came to this floor--right over there, 
not very far from where I am now--and he said:

       The duties of the Senate are set forth in the U.S. 
     Constitution. Nowhere in that document does it say the Senate 
     has a duty to give presidential appointees a vote.

  I agree with Senator Reid. And finally, we have one from my good 
friend from New York, Senator Schumer. Senator Schumer is a very 
articulate man. He is a practiced attorney, and there are many aspects 
of the man I admire. In another instance, in a very passionate speech 
given--it is on YouTube so you can all watch it--he has taken a very 
similar position; that circumstances get to a point to where maybe we 
need to hold nominations until we get the information we need that is 
instructive to the future nomination or the future vote or consent 
matter.
  I agree with Senator Reid's 2005 statement, I agree with Senator 
Biden, Chairman Biden, now-Vice President Biden's statement of 1992, 
and I agree with Senator Schumer's of 2007.
  My colleagues, it is time for us to move on and recognize the 
position we have taken is a position that is going to stand. We can go 
to the American people back in our States, States like North Carolina, 
where we have a primary next week, and I will be traveling all across 
the State tomorrow and Saturday, back again on Monday. I will explain 
to them why I have taken the position I have, and when we do, all the 
games that are being played now, with one poll saying one thing or 
another poll saying another thing, we can cut through the noise and 
talk about what we are really trying to do.
  What we are trying to do is to give the people an opportunity to 
voice where they want to take the direction of the Supreme Court, where 
they want to take the Nation in terms of the Presidency, and where they 
want to take the Nation in terms of the Congress. I am willing to bet 
on the people's voice, and I am looking forward to it being instructive 
to the ultimate decision I make about a Supreme Court nominee.
  I love getting letters from folks in my State, so the last thing I 
leave you with is a quote from a lady named Lois from North Carolina. I 
think she does a good job of summing up my own feelings. She said:

       I really wish the discussions and hoopla could have waited 
     a little longer after Judge Scalia's passing, but we are 
     having the back and forth of what to do. As your constituent, 
     I'm in agreement with the committee position of waiting until 
     after we have a new President. Word out of the White House to 
     the Senate is: Do your job. Well, I, for one, think you are 
     doing your job. It's called checks and balances.

  In the coming weeks, I am looking forward to continuing this debate. 
I want to especially note that Senator Grassley is a wonderful Member 
of the Senate. He has support and admiration from both sides of the 
aisle. I appreciate his leadership on this matter. I appreciate Leader 
McConnell's leadership on this matter. I look forward to getting back 
to North Carolina and hearing what the people would like for me to 
consider as we move forward with the nomination process.
  I thank the Presiding Officer.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Cassidy). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FLAKE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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