[Congressional Record Volume 162, Number 146 (Tuesday, September 27, 2016)]
[Senate]
[Page S6143]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    SENATE RESOLUTION 581--PROHIBITING THE SENATE FROM ADJOURNING, 
 RECESSING, OR CONVENING IN A PRO FORMA SESSION UNLESS THE SENATE HAS 
PROVIDED A HEARING AND A VOTE ON THE PENDING NOMINATION TO THE POSITION 
          OF JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

  Mr. BLUMENTHAL (for himself, Mr. Leahy, Ms. Baldwin, Mr. Bennet, Mr. 
Booker, Mrs. Boxer, Mr. Brown, Ms. Cantwell, Mr. Cardin, Mr. Carper, 
Mr. Casey, Mr. Coons, Mr. Donnelly, Mr. Durbin, Mrs. Feinstein, Mr. 
Franken, Mrs. Gillibrand, Mr. Heinrich, Ms. Heitkamp, Ms. Hirono, Mr. 
Kaine, Ms. Klobuchar, Mr. Markey, Mrs. McCaskill, Mr. Menendez, Mr. 
Merkley, Ms. Mikulski, Mr. Murphy, Mrs. Murray, Mr. Peters, Mr. Reed, 
Mr. Reid, Mr. Sanders, Mr. Schatz, Mr. Schumer, Mrs. Shaheen, Ms. 
Stabenow, Mr. Tester, Mr. Udall, Mr. Warner, Ms. Warren, Mr. 
Whitehouse, and Mr. Wyden) submitted the following resolution; which 
was referred to the Committee on Rules and Administration:

                              S. Res. 581

       Whereas the Constitution of the United States provides that 
     the President shall ``nominate, and by and with the advice 
     and consent of the Senate, shall appoint'' justices of the 
     Supreme Court of the United States (in this preamble referred 
     to as the ``Supreme Court'');
       Whereas the constitutional duty of the Senate of providing 
     advice and consent on nominees to be a justice of the Supreme 
     Court is one of the most important and solemn 
     responsibilities of the Senate;
       Whereas the Senate has taken action on every pending 
     nominee to fill a vacancy on the Supreme Court in the last 
     100 years;
       Whereas the Senate has confirmed 13 justices of the Supreme 
     Court in the month of September, including Chief Justice John 
     Roberts and Justice Antonin Scalia;
       Whereas there has never been a time in history when an 
     elected President has been denied the ability to fill a 
     Supreme Court vacancy, by and with the advice and consent of 
     the Senate, prior to the election of the next President;
       Whereas the Senate has confirmed more than a dozen justices 
     of the Supreme Court in presidential election years, 
     including 5 in the last 100 years;
       Whereas the Senate has confirmed justices of the Supreme 
     Court in election years in which the executive and 
     legislative branches of the Federal Government were divided 
     between 2 political parties, including confirming Associate 
     Justice Anthony Kennedy in 1988;
       Whereas the Committee on the Judiciary of the Senate has 
     never denied a hearing to a nominee to be a justice of the 
     Supreme Court since the committee began holding public 
     confirmation hearings for such nominees in 1916;
       Whereas the Committee on the Judiciary of the Senate has a 
     long tradition of reporting nominees to be a justice of the 
     Supreme Court for consideration by the full Senate, even in 
     cases in which the nominee lacked the support of a majority 
     of the committee, including the nominations of Associate 
     Justice Clarence Thomas in 1991 and Robert Bork in 1987;
       Whereas the Federal Judiciary is a coequal branch of the 
     Federal Government and the Supreme Court serves an essential 
     function resolving questions of law that affect the economy 
     and people of the United States and the protection of the 
     United States and its communities;
       Whereas forcing the Supreme Court to function with only 8 
     sitting justices has created several instances, and risks 
     creating more instances, in which the justices are evenly 
     divided as to the outcome of a case, preventing the Supreme 
     Court from resolving conflicting interpretations of the law 
     from different regions of the United States and thereby 
     undermining the constitutional function of the Supreme Court 
     as the final arbiter of the law;
       Whereas the Supreme Court recusal policy adopted in 1993 
     and signed by Chief Justice William H. Rehnquist, Associate 
     Justices John Paul Stevens, Antonin Scalia, Sandra Day 
     O'Connor, Anthony Kennedy, Clarence Thomas, and Ruth Bader 
     Ginsburg, and later adopted by Chief Justice John Roberts, 
     stresses that ``even one unnecessary recusal impairs the 
     functioning of the Court'' and that ``needless recusal 
     deprives litigants of the nine Justices to which they are 
     entitled, produces the possibility of an even division on the 
     merits of the case, and has a distorting effect on the 
     certiorari process, requiring the petition to obtain (under 
     our current practice) four votes out of eight instead of four 
     out of nine'';
       Whereas since 1975, the average number of days from 
     nomination to confirmation vote for a nominee to be a justice 
     of the Supreme Court has been 70 days;
       Whereas the vacancy on the Supreme Court caused by the 
     death of Associate Justice Antonin Scalia arose on February 
     13, 2016, and the days since the occurrence of that vacancy 
     now number more than 200 days; and
       Whereas on March 16, 2016, President Obama nominated 
     Merrick B. Garland, Chief Judge of the United States Court of 
     Appeals for the District of Columbia Circuit, to fill the 
     Supreme Court vacancy caused by the death of Associate 
     Justice Antonin Scalia: Now, therefore, be it
       Resolved,

     SECTION 1. SHORT TITLE.

       This resolution may be cited as the ``No Vote No Recess 
     Resolution''.

     SEC. 2. PROHIBITING ADJOURNMENT OR PRO FORMA SESSIONS UNTIL 
                   ACTION ON NOMINEE TO SUPREME COURT.

       (a) Prohibition.--During the period beginning on September 
     27, 2016 and ending on the last day of the 114th Congress, 
     the Senate shall not adjourn, remain adjourned, or recess for 
     a period of more than 2 days and shall not convene solely in 
     a pro forma session unless, by the date on which the period 
     of adjournment begins or the date of the pro forma session, 
     the Senate has taken action on any nomination made by the 
     President for a position as a justice of the Supreme Court of 
     the United States by--
       (1) holding a hearing on the nomination in the Committee on 
     the Judiciary of the Senate;
       (2) holding a vote on the nomination in the Committee on 
     the Judiciary of the Senate; and
       (3) holding a confirmation vote on the nomination in the 
     full Senate.
       (b) Adjourning and Recessing.--During the period beginning 
     on September 27, 2016 and ending on the date on which the 
     requirements under paragraphs (1), (2), and (3) of subsection 
     (a) are met--
       (1) a motion to adjourn or to recess the Senate, or any 
     resolution or order of the Senate including a provision that 
     the Senate adjourn at a time certain, shall be decided by a 
     yea-or-nay vote, and agreed to upon an affirmative vote of 
     two-thirds of the Senators voting, a quorum being present;
       (2) if a quorum is present, the Presiding Officer shall not 
     entertain a request to adjourn or recess the Senate by 
     unanimous consent or to vitiate the yeas and nays on such a 
     motion by unanimous consent; and
       (3) if the Senate adjourns due to the absence of a quorum, 
     the Senate shall reconvene 2 hours after the time at which it 
     adjourns and ascertain the presence of a quorum.
       (c) No Suspension of Requirements.--The Presiding Officer 
     may not entertain a request to suspend the operation of this 
     resolution by unanimous consent or motion.
       (d) Consistency With Senate Emergency Procedures and 
     Practices.--Nothing in this resolution shall be construed in 
     a manner that is inconsistent with S. Res. 296 (108th 
     Congress) or any other emergency procedures or practices of 
     the Senate.

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