[Congressional Record Volume 162, Number 43 (Thursday, March 17, 2016)]
[Senate]
[Page S1577]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. PERDUE. Madam President, regarding the vacancy on the Supreme 
Court, many of our colleagues in the minority party have said the same 
things we are saying today. Let's stop kidding each other. This kind of 
political showmanship--and, yes, indeed, hypocrisy--is exactly what 
makes everyone in my home State absolutely apoplectic with Washington.
  The last time I addressed the Supreme Court vacancy on the Senate 
floor, I urged my colleagues on the other side of the aisle not to let 
the nominations process get bogged down in partisan politics--that is 
not what this should be about--not to let this process turn into 
political theater because that is exactly what has happened far too 
often in this body ever since the Bork nomination way back in 1987.
  The organized campaign of vilification and character attacks 
surrounding Judge Bork's nomination was so unprecedented and so extreme 
that it took the creation of a new word, ``to Bork,'' to describe what 
had happened.
  The process for nominating Justices to the Supreme Court has been 
thoroughly politicized ever since. That politicization has done great 
damage not only to the Court but to this body, the U.S. Senate. It has 
expanded beyond just Supreme Court nominees and now affects so many of 
our nominees for circuit judgeships as well. That is what happened in 
2013, when then-Majority Leader Reid broke a tradition almost as old as 
the Senate itself by invoking the nuclear option and breaking the 
Senate's filibuster rule to stack various circuit courts.
  I don't think I need to remind any of my colleagues that when the 
Democrats were in the minority, there was no shortage of protests heard 
in this room about how sacred an institution the filibuster was. Keep 
in mind that the nuclear option was invoked after the Senate confirmed 
the President's first nominee to the DC Circuit by a unanimous 97-to-0 
vote. It was an act of raw political power, the nuclear option.
  We heard yesterday that the President has named his nominee to the 
Supreme Court, but let's be clear, any previous confirmation or record 
as a judge or professional qualifications are not the issue for any 
nominee. What is at stake is the integrity of the process, not the 
person. It is the principle, not the individual, because our judicial 
nominees to the Supreme Court, the circuits, and the district courts 
deserve better than to be used as pawns in any political fight, and 
that is exactly what would happen if the Senate were to consider any 
nominee in the middle of this political season.
  I am a new Member to this institution, but this has been the view of 
my colleagues in both parties who have served in the Senate far longer 
than I have. This was their view no matter who the nominee was. This 
was their view even when there wasn't a vacancy to fill.
  The former chairman of the Judiciary Committee, Vice President Biden, 
recognized this in 1992, when he said:

       Once the political season is underway, and it is, action on 
     a Supreme Court nomination must be--I want to emphasize that 
     ``must''--must be put off until after the election campaign 
     is over. That is what is fair to the nominee and is central 
     to the process. Otherwise, it seems to me, we will be in deep 
     trouble as an institution.

  I agree. The Vice President correctly saw that when we inject a 
nomination into a contentious election-year atmosphere, we do a 
disservice not only to the nominee but to the institution of the United 
States Senate itself. It is my view that enough institutional damage 
has already been done to the Senate through these politicized 
nominations.

  I wish to say a little about the text of the Constitution. We hear 
both sides talk about this, but let's see it in detail.
  I have heard so many of my Democratic colleagues claim that the 
Senate has an obligation to schedule hearings and hold a vote on this 
nominee. We have all read article II, section 2, of the Constitution. 
Every Member of this body knows the Constitution says nothing about 
hearings or votes on judicial nominees. It is simply not there.
  Senators of both parties have always understood this and have said so 
for years, regardless of who was in the majority. In 2005, Minority 
Leader Reid said: ``Nowhere in the Constitution does it say the Senate 
has a duty to give Presidential appointees a vote.'' Before that, in 
2002, the former chief judge of the DC Circuit, Abner Mikva, who was a 
Carter appointee, said: ``The Senate should not act on any Supreme 
Court vacancies that might occur until after the next presidential 
election.'' The senior Senator from Nevada and Judge Mikva were right 
then, and Chairman Grassley and my Republican colleagues are right now.
  Despite many of them previously making the exact same points we are 
today, my Democratic colleagues are continuing this diatribe of telling 
us to do our job. I would respectfully say to my Democratic colleagues 
today, we are doing our job. Our job as Senators is to decide how to 
responsibly exercise the powers of advice and consent delegated to us 
under our Constitution.
  The responsibile course of action here--a course of action endorsed 
by both Democrats and Republicans for decades--is to refrain from 
initiating the nomination process in the midst of an election-year 
political fight. The responsible course of action is to avoid the 
political theater this nomination would become.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mrs. FISCHER. Madam 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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