Congressional Record, Volume 162 Issue 57 (Thursday, April 14, 2016)

[Congressional Record Volume 162, Number 57 (Thursday, April 14, 2016)]
[House]
[Pages H1714-H1720]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

THE SUPREME COURT VACANCY

The SPEAKER pro tempore. Under the Speaker's announced policy of
January 6, 2015, the gentleman from Iowa (Mr. King) is recognized for
60 minutes as the designee of the majority leader.
Mr. KING of Iowa. Mr. Speaker, it is my privilege to be recognized by
you to address you here on the floor of the United States House of
Representatives.
I come to the floor here today with an issue that I think is
important that America have a dialogue on the topic, and some of that
is going on. It is going on in the Presidential races across the
country and in the coffee shops and at work, at play, at church, and
around the country in the things that we do.
But when a moment in history comes along that shocked a lot of us to
the core--and that was the abrupt and unexpected loss of Justice
Antonin Scalia, a person whom I got to know. I would like to say that I
called him a friend. He was a person whose personality I enjoyed a lot,
his robust sense of humor, his acerbic wit in the way that he conveyed
his messages, especially when he wrote the dissenting opinions for the
Supreme Court. He found himself occasionally in the minority, but I
think he was almost always right in those constitutional decisions.
When Justice Scalia wrote those minority opinions, he realized that--
and he just thought in advance--that the students in law school would
have to read the dissenting opinions as well as the majority opinions.
So he made sure when he wrote especially his dissenting opinions that
they were engaging, they were entertaining, they were provocative, and
they were challenging. It caused the law school students to read those
and remember the points that Justice Scalia had made.
That is a legacy of the 30 years of Justice Scalia that will live
within the annals of the history of the United States of America,
especially those who are studying constitutional law and those that are
in law school.
The constitutional law students around America too seldom are taught
constitutional law out of the Constitution itself. We have a President
of the United States who spent 10 years as an adjunct professor
teaching constitutional law at the University of Chicago.
I have met with a good number of the students that he taught. The
ones that I met with, at least, said that, whenever they laid out a
conservative principle and made a constitutional argument based upon
those conservative principles, that then-adjunct professor Barack Obama
would always turn that around to the activist side, to move the needle
hard to the left.
It is my position--and I believe it is also the position of the
chairman of the Judiciary Committee in the House and especially the
chairman of the Judiciary Committee in the Senate--that the
Constitution must be read and interpreted to mean what it says. It
would mean precisely the text of the Constitution as it was understood
to mean at the time of ratification.
The Constitution itself, Mr. Speaker, is the equivalent of--and I
would say literally is--an intergenerational contractual guarantee from
one generation of Americans to the next, to the next, to the next.
Our Founding Fathers understood that, and they so carefully crafted
this Constitution. The language in it reflects their convictions and
their guarantee to each generation.
If it were to be anything else, if it were to be a living and
breathing document, as too many of our Justices on the Supreme Court
and far too many on our Federal bench today, that 40 percent or so that
will have been appointed by Barack Obama by the end of his term--those
Justices, by and large,

[[Page H1715]]

don't believe what I've just said, Mr. Speaker.
They generally believe that the text of the Constitution is something
that they can massage, that they can manipulate, that they can
interpret and reinterpret to mean that which they would want it to mean
if it were written by them today.
Of course, the words wouldn't be the same, but the ideology that
grows from many of these precedent decisions shows that and is proof of
it.
If anyone wonders, Mr. Speaker, I would take them back to the Court
last June 24 and 25. On one day, the Supreme Court concluded that they
could rewrite law. On the next day, the Supreme Court concluded that
they could create not just new rights in the Constitution, but create a
command in the Constitution.
Now, I hope to return to that topic in a little bit, Mr. Speaker.
What we have in front of us is this: The loss of Justice Scalia
leaves an empty seat on the Supreme Court. It is an intellectual hole,
not just a voting hole. But it is an intellectual hole left by the
towering legal intellect of Justice Scalia.
In times throughout history--there are conflicting reports--one can
make the political argument and one can make the traditional argument
as to whether a President should be able to make an appointment to the
Supreme Court and have that appointment ratified and confirmed by the
United States Senate.
Under these circumstances that we have today--this is an election
year, and the loss of Justice Scalia and the creation of that empty
seat on the Supreme Court has brought about a nomination for the
Supreme Court that has been produced by President Barack Obama, even
though the majority party in the Senate, concurring with Majority
Leader Mitch McConnell from Kentucky, as well as the chairman of the
Judiciary Committee, Senator Charles Grassley, have said: We are not
going to take up a nominee and we are not going to have hearings in the
Senate Judiciary Committee.
That means that we won't have a debate on the floor of the Senate for
confirmation because they believe--and it is their prerogative to do
so--they believe that the next Justice on the Supreme Court should be a
reflection of the voice of the people who will go to the polls this
coming November and an elected President of the United States who more
accurately reflects the will of the people rather than a President who
is a lameduck President.
I agree with Senator Grassley and I agree with Majority Leader
Senator McConnell that this is a decision that is too big to be made by
people who are on the way out the door. The President is on the way out
the door. There are Members of the Senate that are on their way out the
door.
We need the fresh faces that have the freshest support of the
American people making these decisions, particularly the next President
of the United States.
Now, predictably, when an argument like this comes up, each side
seeks to gain a political advantage. Yes, this is a political decision.
It is a political decision that needs to be based on the foundation,
however, of the Constitution and the text of the Constitution and the
understanding of the Constitution to mean what it says and mean what it
was interpreted to mean at the time that it was ratified.
Our Founding Fathers gave us a means to amend the Constitution. So
they didn't intend our Constitution to be a living, breathing document,
as the people on the left say.
They intended it to be fixed in place, an intergenerational
contractual guarantee, so that my grandchildren and great-grandchildren
and each succeeding generation can count on this Constitution meaning
what it says.

I have watched it distorted. I have watched it usurped by decisions
made in our Federal courts and by our Supreme Court and a people and a
public that will honor those decisions because they are made by the
judges, not because they are constitutionally grounded decisions.
So this appointment that comes before the Supreme Court--first, I
will go to this. In our Constitution, Mr. Speaker, Article II, section
2--the authority of the executive branch of government must be here
somewhere.
Article II, section 2: This is the text we are working with, Mr.
Speaker. This is the language that governs the nomination, the advice,
the consent, and the appointment to the Supreme Court in this fashion.
I will read this verbatim from Article II, section 2:
``He''--meaning the President of the United States--this is executive
branch authority--``He shall have power, by and with the advice and
consent of the Senate, to . . . nominate, and by and with the advice
and consent of the Senate, shall appoint . . . judges of the Supreme
Court . . .''
Now, he shall have power to nominate and, by and with the advice and
consent, appoint judges of the Supreme Court. That is power to nominate
and appoint by and with the consent, Mr. Speaker.
So the language here is clear, ``by and with the advice and consent
of the Senate.'' The advice and consent of the Senate is determined by
the Senate. The consent of the Senate is the confirmation vote.
The advice would be that the President is to go to the Senate and
say: I have got an appointment here to the Supreme Court. You all know
that. Do you have some names you would like to offer? What is your
counsel here? Look at the makeup of the Court. What is missing? Who do
we have on the bench today? How are they contributing? What kind of job
are they doing in ruling upon the supreme law of the land, the
Constitution itself, and the text of the statutes that Congress has
passed that go before the Court for evaluation as to their
constitutionality?
I will go further than to suggest, Mr. Speaker. I will assert that we
have a Court today that too often reaches outside its bounds. And if I
had a criticism of Justice Scalia, it would be his deeper respect for
stare decisis that I happen to see in a Justice such as Clarence
Thomas.
But when a decision is made by the Court, there has been essentially
a consent of the Court to accept that decision, to build on it, rather
than to go back and reevaluate afresh, anew from the text of the
Constitution.
I think we need to go back and refresh anew and take a look at the
text of the Constitution with each decision of the Supreme Court with
less deference to stare decisis.

{time} 1645

The activists on the Court, on the other hand, are the exact
opposite. They want to build these leftward precedents along the way so
that, in the end, the Constitution would be obliterated.
That is the direction that President Obama has gone. It is the
direction he seeks to go. I would submit that I don't expect that he is
going to be able to make an appointment to the Supreme Court that would
reflect a Justice on the bench whose interpretation of the Constitution
would be to the text and the original understanding and meaning of it,
but, instead, activist judges. That is the history that he has
produced.
I have not evaluated Judge Garland. I don't have a comment on his
work except that this is not the time to confirm an appointment for
Barack Obama and let him shape this Court for the next generation or
so. If we get this wrong, Mr. Speaker, we lose our Constitution for the
next generation.
No matter how astute our Presidents have been, no matter how deeply
they have been committed to the Constitution itself, we have still seen
that, even under Ronald Reagan, he got about half of his appointments
to the Court right.
We need a President coming around the pike that gets every one of
them right. I wouldn't be happy and satisfied until all nine of the
Justices on the Court reflected that they are traditionalists, that
they are textualists, that they are originalists in the Constitution,
and that the judges that are coming up on the Federal bench would also
meet that same standard.
I am not in the United States Senate. We don't have a vote on the
confirmation of appointments to our Federal courts over here in the
House. I do serve on the Committee on the Judiciary, and this is the
end of the 14th year that I have done that, Mr. Speaker.
And so the voice of time and observation and reading and
consideration and

[[Page H1716]]

experience, especially as a member of the Subcommittee on the
Constitution and Civil Justice of the House Committee on the Judiciary,
yes, I have deep convictions on this issue and considerable experience
and knowledge base on it.
I am suggesting, Mr. Speaker, that this House of Representatives
evaluate the arguments that I am making here and the arguments that
Senator Grassley is making on the other side of the rotunda, and these
arguments say we take an oath. This will be my argument.
Mr. Speaker, we all take an oath here to support and defend the
Constitution of the United States. So do the Justices of the Supreme
Court take that oath to support and defend the Constitution of the
United States. The President of the United States takes an oath to
preserve, protect, and defend the Constitution of the United States.
These are serious oaths.
When you stand up before God and country and say ``so help me God,''
you better mean it. That means that the Constitution isn't a malleable
document. When you take an oath to support and defend it, that doesn't
mean you can take an oath to support and defend the Constitution as,
let's say, amended by a Supreme Court.
I would support and defend a Constitution amended constitutionally
only. The Supreme Court Justices are the last people on the planet that
ought to be engaged in amending the Constitution of the United States.
But if I could take you back to those dates I mentioned--June 24,
June 25, 2015--June 24, if you want to look at the calendar, is going
to be a Thursday. That was the date that the decision came out on
ObamaCare. That was King v. Burwell.
That decision, Mr. Speaker, a majority opinion written by the Chief
Justice, boiled down to this: Congress passed a law in two different
components. I call it ObamaCare. They called it the Affordable Care
Act.
I have said that George Washington could not utter those words in
referencing that legislation because it is not affordable and George
Washington could not tell a lie. But it was actually the Patient
Protection and Affordable Care Act.
That long lingo threw people off. So they boiled it down to the
Affordable Care Act. We boiled it down to ObamaCare. ObamaCare is far
more descriptive than the Affordable Care Act and far more honest.
But that legislation came in two packages. It was passed by hook, by
crook, by legislative shenanigan, and that wasn't just me saying that.
There was at least one Democrat here on the floor who used the term
``legislative shenanigan'' in reference to the passage of ObamaCare.
It was passed in that fashion. Yet, when it began to be implemented,
they wrote thousands of pages of regulations that could not have been
imagined at the time that that bill passed the floor here.
There was a massive amount of arm twisting and leverage like this
country has never seen. We had tens of thousands of people that
surrounded this Capitol and pleaded: Keep your hands off of our health
insurance. Keep your hands off of our health care. They wanted their
freedom.
The people who came here understood this, that the most sovereign
thing that we have is our own soul. And the Federal Government hasn't
figured out how to tax it, how to nationalize it, how to take it away
from us.
We are in control of our eternal salvation--that is our soul--and we
manage that. Each one of us manages it. But the second most sovereign
thing we have is our health, our skin, and everything inside it.
Yet, this Congress, House and Senate, together with the President of
the United States--on March 23, 2010, he signed into law the
combination of the two bills that became ObamaCare that I said were
passed by hook, crook, and legislative shenanigan and have their own
constitutional problems.
I would argue the Supreme Court at least twice has ruled outside the
Constitution in order to get ObamaCare implemented, and one of those
was the State exchanges.
The statutory authority for the States to establish insurance
exchanges under the auspices of the State exists within ObamaCare, but
the language that empowers the States to do so does not include the
Federal Government. The Federal Government did not have
the constitutional authority to establish exchanges, and it needed the
language.

If the Obama administration had been astute, they may well have
written into ObamaCare legislation three words, ``or Federal
Government,'' so that the States or Federal Government would have the
legal authority to establish the exchanges.
The Federal Government went ahead and established exchanges within
the multiple States that refused to do so, and the Supreme Court's job
is to read the text of the language and rule on the text of the
language and the law.
But, yet, in a 5-4 decision of the Supreme Court written by the Chief
Justice, they decided that, if the Congress really might have at that
time passed legislation with the language in it that would have said
``or Federal Government,'' that they would just go ahead and interpret
that it really means: Well, okay. It was an oversight on the part of
Congress.
They might have slipped that in there if they had just known that
they needed to write it in there. But it was maybe an oversight by
staff in the middle of the night because, after all, the then-Speaker
of the House, Nancy Pelosi, said we have to pass this legislation in
order to find out what is in it.
Well, she didn't say we had to pass it to find out what wasn't in it.
But what wasn't in it was the authority for the Federal Government to
go into the States and intervene and establish their own exchanges
within the States. But this Obama administration did that with the
people's tax dollars, and I will say in violation of the law.
When it was appealed to the Supreme Court to assert just that, the
Supreme Court ruled, well, it would have been better for the policy, in
their judgment, if the language had been in there, ``or Federal
Government.''
But it wasn't in there. So they deemed it in. That is a legislative
decision made by a 5-4 decision of the Supreme Court that came down on
us June 24, 2015. That is appalling to me.
I am aghast at the idea that a Supreme Court could be ruling upon the
supreme law of the land and come down with a decision that they are now
the legislative body to completely alter legislation that was the due
decision of, I think, an erroneous decision, but a majority decision of
the United States Congress.
Now, in any other world, in any other time, in any other kind of a
decision that would come down, a Supreme Court could, should, has, and
would justly send it back to Congress with this directive: We can't
find in here the language you may have wanted to pass. If you want this
language in this bill, Article I says all legislative authority is
vested in the Congress of the United States.
So the only right choice for a Supreme Court faced with this kind of
a decision was to not remand it back to a lower court for a decision,
essentially and, I will say, virtually, remand it to Congress and say
to Congress: If you want to have federally established exchanges within
the States, you have to pass a law that says so.
That is not what they did. They decided that they could change the
law over at the Supreme Court building.
Now, if that can be done, if the Supreme Court of the United States
can take on the trappings of a legislature and become a super
legislature--and, by the way, they are appointed for life, for life.
So there is no consequence for people who can't be voted out of
office. You can't even replace them for the duration of their life.
But they made the decision that they were the super legislature, and
5-4, under King v. Burwell, they put three words de facto, three words
into the ObamaCare legislation, ``or Federal Government.''
Now, I am barely up off the floor from reading this on that Thursday,
June 24, 2015, and, as the Sun comes up on me on the following morning,
I am contemplating: What do we do about this? How does Congress react?
What should the public messages be in one part?
At 9:00 in the morning in Iowa, 10:00 D.C. time, I am rolling into
St. Anne's Catholic Church in Logan, Iowa, to do an event there with a
visiting priest

[[Page H1717]]

and with the parish there at St. Anne's in Logan, Iowa.
And who merged together--at the same time we pulled in and parked
essentially simultaneously--was the vehicle of former Senator Rick
Santorum, one of the leading constitutionalists in this country, one of
the strongest people in defense of life and defense of marriage and
defense of the Constitution that we have seen--and I will say within a
generation--with deep convictions, a clear understanding, and a very
articulate voice.
As we got out of our vehicles, each of us had been listening to the
news report of the decision that came down from the Supreme Court that
day. That was a decision on marriage. I pronounce it Obergefell
decision.
But that decision on marriage that came down on Friday, June 25,
2015, where the Supreme Court--I mentioned in the earliest part of my
conversation, Mr. Speaker, the Supreme Court would legislate from the
bench, and the Supreme Court not only created what would be a new right
from the bench, but they created--they manufactured out of thin air a
command, a command to every State in the Union.
That command that they created without any constitutional basis
whatsoever was to the States this: If you are to have civil marriage in
your State, it shall include same-sex marriage on equal standing with a
man and a woman joined together in matrimony. No matter what your State
laws, no matter what your State constitutions say, we usurp it from the
Supreme Court with an edict, a directive, a command, that you shall
conduct same-sex marriages on equal standing and you shall recognize
same-sex marriages from other States with reciprocity as well.
Now, this is not a decision that could have been made by the United
States Congress and not had it challenged. And I would say the Congress
does not have the authority to impose same-sex marriage on the rest of
the country.
If we had had the audacity to make such a decision in the House and
the Senate and signed by the President, somebody would take that to the
Supreme Court and say: Show me the enumerated power that Congress has
to regulate marriage in such a fashion.
I would argue that we don't have that constitutional authority, but I
would submit that the States do have. The States under the Ninth and
Tenth Amendment do have the authority.
If they decide to establish same-sex marriage in their State
legislatures and they can get their Governor to sign the legislation or
override a veto, any one or any combination of or all of the States
could pass a same-sex marriage law, I would respect that as a
constitutional decision made by we, the people, whether it is we, the
people of Iowa, or we, the people of another State, or all other
States, for that matter, but not the Supreme Court, Mr. Speaker.
The Supreme Court of the United States didn't just manufacture a
right, they created a command to the States, and that is
constitutionally offensive to me to read a decision like that.
By the way, I had a preview of it because the State Supreme Court in
Iowa did just that in about 2009 and some of us dug down into that
decision. That was about a 63- or 64-page decision, and it was an
appalling, sloppy piece of legal work that was written with, I believe,
a conclusion. And then they had to go through a lot of legalistic and
mental and logical contortions to get to their conclusion.

I would invite anybody to read that decision. I believe that an
objective reading of that decision brings them down with the same
characterization that I would have.
I want judges who read the Constitution and literally interpret the
Constitution. And the judges who understand, as Justice Scalia did,
that when he makes a decision based on the Constitution and the letter
of the law--if he is uncomfortable with the policy decision that
emerges with that, that tells him that he can be very comfortable with
the constitutionality of the decision that he has made because, on
policy, he disagrees, but he knows that he is not there to determine
policy.
He is there, as Justice Roberts said in his confirmation accurately,
I think, to call the balls and the strikes, not to be the one that is a
player in that arena.

{time} 1700

So we have Senator Chuck Grassley, the man who is standing in the gap
and a man who is the chairman of the United States Senate Judiciary
Committee who has the control over the agenda of that committee and
decides whether there will be hearings before the Judiciary Committee
on this appointment of the President or whether there will not be--and
he has said in conjunction with Majority Leader McConnell, that there
will not be hearings in the Judiciary Committee. And Chuck Grassley is
right, Mitch McConnell is right.
This argument gets cast back and forth--and it will be cast back and
forth--and the amperage of this will go up and up and up between now
and the election. They will turn that into a political football.
For me, I say: Take Chuck Grassley's word to the bank and we are done
talking about it. But they want the political leverage. So they will be
pressuring Chuck Grassley.
Mr. Speaker, here is a little bit of what is going on. Here is my
public position on the issue. And it had to do with a press conference
where I said, ``There is no reason to have that hearing. The simple
answer to it is this: It's inconceivable that he''--President Obama--
``would nominate someone to the Supreme Court who believes in the
Constitution. If we're going to save our Constitution, we can't have an
Obama nominee on the court.''
Mr. Speaker, that is maybe a blunt statement, but I have watched the
history and the pattern of Barack Obama and appointments that he has
made to the court. There is no question that they are liberal, leftist
activists who want to come down with decisions that are more in the
direction of the leadership of the ideology on the left and with very
little deference to the Founding Fathers and anchored to the text of
the Constitution.
And I have given what the Constitution says about nominations by
advice and consent. Again, the President ``shall nominate, and by and
with the Advice and Consent of the Senate, shall appoint.'' In other
words, the President can't make an appointment to the Supreme Court
unless he has the advice and consent of the Senate.
Now, advice could be fairly loosely interpreted, but consent is a
different story. That takes a vote to do that--judges to the Supreme
Court. That means the President nominates, the Senate can provide the
advice before the nomination--that would be the best--and perhaps some
advice after. But the consent of the Senate is required or there won't
be a seat in the Supreme Court that is filled by Barack Obama.
Now, I point out also that there is nothing in this Constitution that
says that there has to be nine Justices on the Supreme Court. This is
where the House could actually weigh in on this, if we decide to do
this. The Constitution of the United States requires that the Congress
establish a Supreme Court. And then it is up to our discretion as to
what other Federal court we might want to establish.
Mr. Speaker, I actually had this debate with Justice Scalia. One of
the things I enjoyed about him was little banters along the way and how
these arguments came out. And I made the point to him that the
Constitution only requires that the Congress establish a Supreme Court,
not all the other Federal courts. So we could--Congress--abolish all of
the Federal districts that are there. We could say there will be no
Federal courts. It will all be handled through the Supreme Court
itself. That is not a practical application, but it is from a
constitutional perspective.
Then I said to Justice Scalia that we could eliminate all the Federal
courts except the Supreme Court. And over time, we could reduce the
Supreme Court. There is no requirement that the Supreme Court have nine
Justices or seven or five or three. We could reduce the Supreme Court
of the United States down to the Chief Justice. There is no requirement
that we build or fund a building or heat it or wire it for electronics
or anything. There is no requirement that we have staff for any of the
Supreme Court. The Congress could crank all the Federal courts down to
just the Supreme Court, reduce the Supreme Court down to just the Chief
Justice at his own card table, with candle, no staff, and no facility.

[[Page H1718]]

That is the argument I made to Justice Scalia. Some of this I do for
entertainment value because he always was an engaging fellow to have
these conversations with.
Mr. Speaker, I don't know if you ever heard this point made to him
before, but Justice Scalia's response to it was: I would argue that
there is a requirement that there be three Justices on the Supreme
Court; otherwise, there is no reason to have a Chief Justice.
I thought that was a pretty astute response, Mr. Speaker. But my
response to that was: we have always had too many chiefs and not enough
Indians.
So we had a little fun with that and moved on, but that is the
leverage that the House and the Senate has together. There is not a
requirement that there be a ninth Justice on the Supreme Court. I am
comfortable with that and supportive of that, but I want to fill that
seat with someone that reflects the values of Justice Scalia and
perhaps one that will reflect even more closely the values of Justice
Thomas, in particular.
And there are a number of other Justices that I admire on the Supreme
Court, but another activist on the Supreme Court is not what this
country needs. This country needs to have a constitutionalist, an
originalist, a textualist on the Supreme Court that will reflect the
meaning of this Constitution at its time of ratification.
And that is why our Founders gave us a means to amend the
Constitution. They didn't intend for the Supreme Court to be taking on
the trappings of a super legislature and legislating on one day by
adding words to ObamaCare, and then the very next day create the new
command in the Constitution that the State shall conduct same-sex
marriages and honor same-sex marriages in other States. That is over
the top. That is beyond the pale.
If you can imagine what our Founding Fathers would say, how about the
signers of the Declaration of Independence?
If we could bring them to life today and walk them out here into
Statuary Hall and say: take a look at this painting up here where you
are all signing this Declaration of Independence. Or better yet, go
over to the Archives, where they pledged their lives, fortunes, and
sacred honor, and you can still see John Hancock's signature there
almost as clearly as the day that he may well have signed that.
What would those Founding Fathers say if they knew that within a 24-
hour window or maybe a 25-hour window, the Supreme Court of the United
States said, We are going to confer national health insurance on
everybody in America, and the Congress didn't write the law right, so
we wrote it for them; and then the next day, same-sex marriage?
You wouldn't find a single Founding Father that would agree with
either one of those decisions, Mr. Speaker. We are on the cusp of
making an appointment to the Supreme Court that would feed this back to
us and do more and more and more.
How do you possibly teach the Constitution to young people? How do
you teach civics to young people if the Constitution itself is moving
in such a way that no one can predict what would happen?
I am very pleased to see that I am joined by another
constitutionalist out of the State of Florida, who is a clear thinker
and has a good understanding. I yield to the gentleman from Florida
(Mr. Yoho), my friend and a doctor.

Mr. YOHO. I would like to thank my colleague for those kind words.
Mr. Speaker, I would like to take just a quick moment to add to the
important work that Mr. King is doing and to thank my colleague for
yielding me the time and for his continued leadership in the fight to
ensure the dignity of the Supreme Court so that it is not undermined by
the nomination and subsequent appointment of a Justice whose judicial
ideologies run counter to the Founders' constitutional principles, as
you have spoken so eloquently about.
The United States of America, the great American experiment, is an
experiment that has surpassed centuries of speculation and persisted
through the Civil War, an experiment that survived two World Wars and
continues to stand as a beacon of hope to nations across the globe, an
experiment made possible because of the foresight of our Founding
Fathers--and it had to have some divine intervention because men just
aren't that smart, so there was wisdom--who recognized the necessity to
establish a government ruled by a series of laws they felt were so
essential to ensure equal opportunity--not equal outcome, but equal
opportunity--in the pursuit of prosperity and happiness to all
citizens.
These documents--the United States Constitution and the Bill of
Rights--I have right here. I want people to look at this. This is the
entire Declaration of Independence and the Constitution. I think if you
look at it, we will all agree it is not an epic in volume. Even my
colleague across the aisle recognizes that.
It is not an epic in volume, but yet it is an epic in the ideology of
what America stands for. And it stands for opportunity. And if you put
work behind that, it becomes the American Dream, your American Dream.
The very fabric of this country is our core value, our founding
principles, and the Constitution that preserves this.
And that is the very document that gives people on the left the voice
of dissension, as it does people on the right. And if we lose this--
these principles--we lose that very argument, the very thing that made
America great.
And I ask you: Are those ideologies Republican or Democrat,
conservative, liberal, White, Black, or any other adjective you want to
throw in there?
And I would venture to say that you would all say no, they are
American ideologies. That is why this discussion is so important.
The United States is facing an unprecedented attack by activist
justices in both the lower and upper courts. If leaders were to yield
to the demands of President Obama or any other executive in the future,
and nominate any individual who does not have a true, tried, and tested
conservative record on constitutional issues, the ensuing Supreme Court
opinions could be detrimental to constitutional law for years, if not
decades, to come. And I would surmise that if we cross that bridge and
go beyond the constitutional principles of this country, what America
is, what it has been in the past, and what we hope it to be in the
future may be lost in the history of time.
While I fully understand the importance of having a full Bench and
all nine Justices available to hear some of the most critical cases of
our time, it should not be done at the expense of our Constitution.
That is a document we all should revere. We all should stand up and
protect it. After all, don't we all give an oath to uphold that sacred
document?
As American culture has ebbed and flowed--and it will continue to--
morphing into what it is today, it was these founding documents that
fostered an environment where the voice of the few, not just the many,
could be heard.
And that is the beauty of our country: a constitutional Republic. So
many people want to refer to it as a democracy. A democracy is majority
rule. A democracy is mob rule. And as Ben Franklin was often quoted:

Democracy is the same as two wolves and a sheep deciding
what to have for lunch.

As we know, in that story, the sheep always loses. So that is why it
is so important, because a constitutional Republic protects the rights
of the minority, of all people.
American culture, as I said, has ebbed and flowed over the period of
time and it is morphing and will continue to morph. They have allowed
for the people to dictate change, not a man who likes to remind the
American people that he believes he can rewrite our history and,
through the use of his phone and a pen, direct executive agencies to
act with disregard to the voice of the people. A pen and a phone are
not a replacement for the legislative body. And it is the Senate's
chore to pick that person.
Take, for example, a vital case about to be argued before the Supreme
Court next week: United States v. Texas. To some, this may seem like a
simple anti-immigration or, in some cases, a pro-immigration case. But
at its core, it is not about whether or not you are anti- or pro-
immigration. It is about whether or not the Supreme Court will allow
the executive branch to circumvent Congress and legislate from the Oval
Office rather than through Capitol Hill, the way it was intended by our
Founders.

[[Page H1719]]

I believe the Constitution is clear on this issue, but I also believe
any Justice who does not have a deep appreciation for the Constitution,
as the late Justice Scalia did, would disagree with me. Therein lies
the danger: any Justice who is willing to tip the scale in the balance
of power in favor of a runaway Presidential office.
And it is not just this administration. It could be any in the
future. And that is why this is so important. This crosses party lines.
It is a political ideology that I would argue threatens the very fabric
of the foundation and the founding of our Nation.
Congress cannot allow itself to cave and settle for a Justice that
would be complacent in the destruction of the Constitution and
ultimately the destruction of the great American experiment.

{time} 1715

I challenge the President to get serious with this nomination and put
forth the name of a Justice that will uphold the constitutional
principles and not legislate from the bench.
In the meantime, I urge my colleagues in the Senate to hold steadfast
and not allow themselves to be persuaded by public opinion, public
pressure, and by those who will try to pressure them to vote for any
nominee who will do the American legacy and the American people an
injustice by undermining the Constitution from the highest court in
this great Nation.
This discussion is so important. The very fabric of this discussion
and the very basis of this discussion is about the preservation of this
institution. That is what this is about.
If you look at a timeline of human history and you look at the
American experiment, it is but a dot on that period of time, but it has
created the greatest country in the world. The reason that has been
allowed is because of the Constitution.
Again, those ideologies aren't Republican; they are not Democrat.
They are American ideologies so that we will all benefit. And we all
have a hand to preserve those. We can have our differences, but this is
one thing we shouldn't differ on, and this is for the posterity of all
Americans: conservatives, liberals, White, Black, anybody else.
This is something we stand strong on, and I appreciate the gentleman
from Iowa, my colleague and mentor, Mr. King, for bringing this up. I
thank you for continuing the fight and bringing this out to the
American people. This is important.
Mr. KING of Iowa. Reclaiming my time and thanking very much the
gentleman from Florida for the compliments and the input here, too.
I learned something in this discussion and listening to Mr. Yoho from
Florida, and that is, when he spoke of divine intervention in our
Constitution, the answer required divine intervention because men just
aren't that smart.
I hadn't heard that expression in this town or anyplace. That
explains it in a lot of ways. I have long said that I believe that the
Declaration of Independence and the Constitution are written with
divine guidance.
I choose those terms because the Bible was written with divine
intervention and divine inspiration. That is up here. Divine guidance
is just a little click below that. I don't want to claim Biblical
standards, but it is really close. We would not have this country if it
were not for God's guidance of our Founding Fathers, and so I tuned my
ear to that.
I would say also, whose advice should the Senators listen to on the
other side?
Well, they should listen to Ted Yoho's advice. I hope they are
listening to my advice, Mr. Speaker. But those on the Republican side
of the aisle, they are pretty solid.
I want to publicly and personally thank my friend, whom I appreciate
and respect a lot, Jerry Moran, who has been in a difficult place in
Kansas. He is a terrific friend, and I served with him here in the
House of Representatives. His position is shored up in opposition to
having hearings in the Judiciary Committee and trying to move this. I
think the reconsideration that he has done is a good thing, and I hope
the people of Kansas understand and appreciate Jerry Moran in the
fashion that I do as well.
I would suggest that maybe Jerry Moran and some of the Democrat
Senators, in particular, may have been listening to this advice, Mr.
Speaker. This would be advice from the Vice President himself, Joe
Biden, advice that he gave on June 25, 1992. So it has sustained the
test of time in this fashion. It is called the Biden Rule. Quote, from
Vice President Joe Biden:

It is my view that if a Supreme Court Justice resigns
tomorrow, or within the next several weeks, or resigns at the
end of the summer, President Bush should consider following
the practice of a majority of his predecessors and not--
repeats it--and not name a nominee until after the November
election is completed.

That is Joe Biden, and, at that time, he was the chairman of the
Senate Judiciary Committee, Mr. Speaker. Again, that was June 25, 1992.
We are only a couple of months away in proportion to that in this
period of time.
So if our friends over on the Senate side are not listening to the
Vice President, I would suggest they might listen to the Senate
minority leader, Harry Reid, the former majority leader in the Senate.
This is Harry Reid's statement made in 2005. You will note that this
was back when George W. Bush was President. Harry Reid, minority leader
today in the Senate:

The duties of the United States Senate are set forth in the
Constitution of the United States. Nowhere in that document
does it say that the Senate has a duty to give Presidential
nominees a vote. It says appointments shall be made with the
advice and consent of the Senate. That is very different than
saying every nominee receives a vote . . . The Senate is not
a rubber stamp for the executive branch.

That is Harry Reid, 2005.
Both of those gentlemen, I would say today, would argue against their
previous arguments. I am reinforcing their arguments today on the floor
of the House of Representatives.
We are not finished, Mr. Speaker. Who is another strong, influential
voice over there in the Senate Judiciary Committee?
Senator Schumer of New York. He wanted to block the Bush nominees,
and here is what he had to say. He said:

We should not confirm any Bush nominee to the Supreme Court
except in extraordinary circumstances.

Senator Schumer cited ideological reasons for the delay, and I begin
another quote:

They must prove by actions, not words, that they are in the
mainstream, rather than we have to prove that they are not.

Well, there is a statement of ambiguity for you, Mr. Speaker,
requiring an appointment to the Supreme Court to prove that they are in
the mainstream.
What is the mainstream? That would be what Chuck Schumer would define
as the mainstream, depending upon whether or not he supported the
candidate that was speaking to present themselves to be in the
mainstream.
I would argue that mainstream is not a requirement for an appointment
to the Supreme Court. The requirements for the appointment to the
Supreme Court are determined by the discretion and the judgment of the
confirming Senators over on the other side of this Capitol Building,
and they should be obligated to only confirm Justices who interpret the
Constitution to mean what it says.
To mean what it says. Is that too much to ask? Why, then, do we have
a Constitution if it can't mean what it says?
Senator Schumer wasn't done, however. He argued again in 2007:

We should reverse the presumption of confirmation. The
Supreme Court is dangerously out of balance. We cannot afford
to see Justice Stevens replaced by another Roberts, or a
Justice Ginsburg by another Alito.

That was 2007.
Well, I think the Supreme Court is dangerously out of balance
precisely because of the Justices that Senator Schumer supports and
because there are not enough Justices on the Supreme Court that he has
opposed, because I believe that the Justices need to reflect and
protect the text and the original understanding of the Constitution.
Every Founding Father believed that as well when they went to their
grave; and they would be rolling over in it if they saw a Supreme Court
that was writing law on one day, manufacturing commands the next day,
and now hearing an argument that the President of the United States has
a right to his appointment to the Supreme Court, no

[[Page H1720]]

matter what kind of activist he might serve up, that is going to visit
upon the American people, for at least the next generation, decisions
that usurp the authority of the United States House of Representatives
and the United States Senate and commandeer the legislative authority
away from Article I and commandeer some kind of authority to
manufacture commands, as they did last June.
Then, we are not done yet. In case this argument isn't strong enough
at this point, Mr. Speaker, here is another.
The very individual that made the appointment to the Supreme Court,
that would be then-Senator Barack Obama, now President Obama, he
filibustered the Alito appointment--the Alito nomination. Excuse me.
Here is what then-Senator Obama argued in 2006. Well, they say this
now. This is his spokesman today: ``President Obama regrets
filibustering the nomination of Supreme Court Justice Samuel Alito in
2006''--this is from his top spokesman who said, just a week or so ago,
``though he maintains that the Republican opposition to his effort to
replace Justice Antonin Scalia is unprecedented.''
No, the President of the United States' opposition to Justice Alito
was unprecedented, not the opposition created here by Chairman Grassley
or Majority Leader McConnell and almost every Republican over there in
the United States Senate; and I don't know any Republicans in the House
who think they ought to move this appointment now.
So, here are some other positions along the way, Mr. Speaker,
regarding Senator Grassley's comments. Senator Grassley made some
strong positions on the floor of the Senate a little over a week ago,
and they were published in Politico, as I recall, where it would be
this. The Supreme Court has weighed in on this nomination, and that
would be Chief Justice Roberts has intervened and made comments in this
way: that before Scalia had passed away, he argued that the
confirmation process is not functioning very well, that it has gotten
too political.
I was very proud of Senator Grassley when he stepped up on the floor
of the Senate and rebutted that argument and he made the case that, no,
the confirmation process in the United States Senate has gotten
political precisely because the Court itself is making political
decisions rather than decisions based upon the law and the supreme law
of the land, the Constitution.
So when you see political decisions come out of the Court--and those
decisions, I have described some of them; there are many others--that
means that the confirmation process itself is political.
And when I sat before the Supreme Court and heard the oral arguments
before the Court--and I hope to do that again next week--I was amazed.
I expected that I would hear profound constitutional arguments before
the United States Supreme Court. I mean, I grew up, I guess, naively
believing that those were the arguments made before that Court. I think
the Warren Court had already turned that thing in the other direction,
and I didn't realize it.
But when I first sat before the United States Supreme Court and
listened for those arguments, thinking it was going to be an amazing
educational experience for me, what I found was there weren't any
profound constitutional arguments made. Those arguments, instead, were
being made to the swing Justice on the Court to try to get to that
individual's heart, because they understood the various proclivities in
the thinking and the rationale that might come. They went back and
looked at the lives, the lifestyle, the history of the Justices and
wondered what moves their heart rather than what moves their rationale.
We should only have Justices whose rationale is moved by constitutional
arguments before the Court.
Let's see. Who else do I have?
President Obama, who made the argument that he wants appointments to
the Supreme Court who have--what is the word?--compassion, empathy.
President Obama's word is ``empathy.''
We are not looking for empathy on the Supreme Court. We are looking
for Justices that can rule on the letter and the text and the original
meaning and understanding of the Constitution, and the letter and text
of the law here in Congress that we passed.
And, yes, they can take into consideration congressional intent, but
they can't amend the language. If the language says one thing, they
don't get to add words to it. They should ship it back over here and
tell us what they have interpreted that it said, and then the Congress
can decide whether or not we want to act.
We take an oath to support and defend the Constitution. That doesn't
mean we are bound by a decision of the Supreme Court that turns the
Constitution on its head.
So this fight that is going on in the Supreme Court with the
nomination to the Court now is one that will turn the destiny of the
United States of America.
Depending on who ends up as the next President of the United States,
I have every confidence that Senator Grassley holds his ground, that
there will not be hearings before the United States Senate Judiciary
Committee, that the Senate prerogative will prevail, and that the
people will go to the polls in November and elect a President. Part of
that decision will be: Will that President make the right appointment
to the Supreme Court?
In the meantime, Chuck Grassley, the man who is now the chairman of
the committee, stands in the gap in the same way that Leonidas stood
against Xerxes at the Battle of Thermopylae when he led the 300 to
stand in that gap and face 300,000 Persians. He is holding his ground.
He is holding his ground nobly. He is holding it with conviction. He is
holding it with determination. And we need to stand with him, beside
him, and behind him in every way that we can and understand that this
is a political assault that is going at him.
We should reward him for his convictions by electing a President who
will make that appointment to the Supreme Court who reflects the will
of the people. And the will of the people, I trust, will still want to
see an appointment to the Supreme Court of a Justice who would stand up
and say this Constitution means what it says.
The text of this Constitution has to mean what it says, and it has to
be interpreted to mean that which it was understood to mean at the time
of its ratification. And if you don't like what it does for our policy,
then get to work and amend the Constitution. That is why that provision
is there. That is why we have the amendments to the Constitution today.
So I thank Senator Grassley for his strong stand. I thank Mitch
McConnell for his leadership in the Senate. I thank everyone over there
who holds their ground, and everyone here in this Congress who takes an
oath to support and defend the Constitution and means it.
Mr. Speaker, I yield back the balance of my time.

____________________