[Congressional Record Volume 162, Number 146 (Tuesday, September 27, 2016)]
[Senate]
[Pages S6162-S6164]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF MERRICK GARLAND

  Mr. BENNET. Mr. President, I am privileged to be here with the 
Presiding Officer this evening. I thank my colleague from Arkansas for 
allowing me to speak at this time.
  I rise to discuss the vacancy on the Supreme Court. Nearly 200 days 
have passed since the President nominated Judge Merrick Garland to fill 
the Supreme Court vacancy. Yet the majority still refuses to hold a 
hearing on his record or a vote on his nomination. As a result, Judge 
Garland is now the longest pending nominee in the Nation's history.
  Next week, the Supreme Court will reconvene for a new term with one 
seat still vacant. I remember reading Justice Scalia's opinion in a 
case where he described an eight-member Court as a diminished Court. 
That was the language he used. We now have a Supreme Court that, not 
just in one term but in two terms, has been diminished by the inability 
of this Senate to confirm a nominee.
  There is no doubt that anybody with any sense can see this has been 
an unconventional period in American politics, to say the least, but in 
many cases, the majority's refusal to even consider Judge Garland's 
nomination is the most egregious example of Washington dysfunction I 
have seen.
  Within an hour of Justice Scalia's death, the majority leader 
unilaterally decided the Senate would not consider the President's 
nominee, even though 342 days remained in the President's term. By 
taking this unprecedented action, the majority leader hoped that the 
next President would nominate someone with the same originalist 
judicial philosophy as Justice Scalia. Indeed, that is what some of my 
colleagues have said. Waiting would allow the next President to 
``nominate a justice who will continue Justice Scalia's unwavering 
belief in the founding principles we hold dear.'' Another said that we 
should wait so as to ``preserve the conservative legacy of the late 
Antonin Scalia.'' By taking this position, they have made clear that 
they want the next President--perhaps Donald Trump--to replace an 
originalist such as Antonin Scalia with another originalist. But by 
taking this approach, the majority leader has radically departed from 
the plain language of the Constitution and more than 200 years of 
historic precedent in this Chamber.
  As an originalist--and he certainly was--Justice Scalia would 
interpret the Constitution by examining the meaning of the words when 
it was enacted.
  Article II, section 2 of the Constitution states: ``[The President] 
shall nominate, and by and with the Advice and Consent of the Senate 
shall appoint . . . Judges of the Supreme Court.'' When a vacancy 
arises, the President has an affirmative duty to nominate a 
replacement, and the Senate, in return, has an affirmative duty to 
advise and consent. That is what the plain language of the Constitution 
requires, and that is what the original meaning would have been.
  But beyond the text of the Constitution, we should also consider the 
traditions of our predecessors in this Chamber. Members of the majority 
seem eager to make this point. One of our colleagues said that ``we 
should follow a tradition embraced by both parties and allow his 
successor to select the next Supreme Court Justice.'' Another said: 
``There is significant precedent for holding a Supreme Court vacancy 
open through the end of a president's term in an election year.'' The 
truth is exactly the opposite. In fact, the majority's position today 
is absolutely unprecedented in the history of the United States or the 
history of the U.S. Senate.
  Recently, Professors Robert Kar and Jason Mazzone combed through the 
history of Supreme Court nominations and Senate confirmations for a 
piece I believe appeared in the NYU law journal. Since the founding of 
the country, there have been 103 instances similar to the moment we 
face today, where an elected President nominated a person to fill a 
vacancy before the election of the successor--where an elected 
President nominated an individual to fill a vacancy before the election 
of his successor.
  The professors found that in all 103 instances, the sitting President 
was able to both nominate and appoint a replacement Justice by and with 
the advice and consent of the Senate. The professors further wrote: 
``This is true even of all eight such cases where the nomination 
process began during an election year.''
  That is the history. That is the precedent. So when we hear people

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come to the floor and say the customary practice has been to do this or 
that, it is not true. I sometimes wonder why people who are committed 
originalists are out here talking about the customary practice at all 
because it ought to be the plain meaning of the Constitution folks are 
following, but if we are going to talk about the customary practice, 
let's talk about what has actually happened rather than inventing it on 
the floor of the Senate.
  For the last 200 days, the majority has argued we should, for the 
first time ever--ever--depart from this 200-year tradition. I will say 
this on this floor: There is nothing conservative about that position. 
That is a radical position, at war with the Founders' view of this. 
When the chairman of the Judiciary Committee said that ``the fact of 
the matter is that it's been standard practice''--his language--``to 
not confirm Supreme Court nominees during a presidential election 
year,'' he was incorrect.
  The fact is, the standard practice in the Senate is just as clear as 
the plain text and the original meaning. If the sitting President 
nominates an individual to fill a Supreme Court vacancy, the Senate 
acts with an up-or-down vote.
  I should say I am not here to say anybody should vote for the 
nominee. That is a matter of conscience for every single Member of the 
Senate, but our job is to have a vote. When Members of the majority say 
things like, ``It's been 80 years since any President was permitted to 
immediately fill a vacancy that arose in a presidential election 
year,'' they fail to mention that in the past 80 years a vacancy has 
not arisen on the Supreme Court in an election year at all.
  The 80-year time period the majority highlights is precisely the 80-
year period in which no Supreme Court vacancies occurred during an 
election year. If you go back just one more election--84 years ago--you 
will find a case from 1932 that is very similar to ours today. On 
February 25 of that election year, President Hoover nominated Benjamin 
Cardozo to replace Justice Holmes on the Supreme Court. The Senate 
confirmed Cardozo 9 days later.
  So when Senators come to the floor and say we have an 80-year 
precedent of not confirming Justices at this moment in a President's 
term, that is only because there hasn't been a vacancy. I might as well 
say we have an 84-year precedent where we do confirm Justices in the 
last year because that is what happened 84 years ago with Justice 
Cardozo.
  The Senate also confirmed three other Supreme Court nominees in 
election years in the 20th Century--twice in 1916 and once in 1912. So 
I can extend my 84-year precedent farther back into history.
  Through their research, Professors Kar and Mazzone found only six 
cases where the Senate acted consistent with today's majority--to 
deliberately ignore the President's nominee for a Supreme Court vacancy 
and wait for the successor--but none of these cases is analogous in any 
way to the vacancy we face in this Senate.
  In those six cases, there were questions about the sitting 
President's legitimacy, either because that President had assumed 
office by succession, unlike the current President, who was elected to 
the Presidency and then reelected to the Presidency, or because the 
nominations came after the election of the next President, which we 
know is not the case today because the vacancy occurred 340 or so days 
before the end of the President's term, and anybody watching television 
last night would know we have yet to select the next President of the 
United States.
  What is amazing is that even in the remaining 13 cases, where there 
was some question about legitimacy or it was after the successor had 
been elected, the Senate still confirmed a majority of the President's 
nominees. Six were the minority, where they weren't confirmed. The rest 
they confirmed.
  To suggest this President, whom the American people elected twice, 
should not be able to fill a Supreme Court vacancy is a radical 
departure from the Constitution's text and the Senate's historical 
practice. As the professors conclude, the majority's actions are 
``unprecedented in the history of Supreme Court appointments.''
  Whether by interpreting the original meaning of the Constitution or 
by following standard practice, every other Senate has acted, not by 
refusing to consider the nomination or stalling until after an election 
or waiting for the next President to make a nomination but by having a 
debate in full view of the American people and to give the nominee an 
up-or-down vote.
  As I said earlier, of course the majority can withhold its consent by 
voting no. That is their constitutional prerogative. That is what it 
did in 1987, when the full Senate voted against Robert Bork, even after 
the Judiciary Committee conducted full hearings and a majority voted 
against his nomination.
  The Constitution doesn't say the Judiciary Committee shall advise and 
consent. It says the Senate shall advise and consent, and that is what 
a majority of the Senate did in 1795, when it rejected George 
Washington's nomination of Justice John Rutledge as Chief Justice. By 
the way, that Senate--which unlike ours actually included some of the 
Framers who wrote the Constitution--went on to confirm three nominees, 
all in the fourth year of George Washington's second term--all in the 
eighth year that George Washington was President.

  This was true in 1968, when there were serious concerns about 
President Johnson's nominee, Justice Abe Fortas, to replace the 
outgoing Chief Justice. Even then, in President Johnson's final months 
in office, the Senate held confirmation hearings and floor debates. The 
Senate had a full and public debate on the merits of the nominee.
  In fact, as the professors found, only 12 nominations out of 160 over 
the entire course of the history of the United States failed to reach 
the Senate floor. Most of these were made near the end of a legislative 
session or were later withdrawn by the President, but in every other 
instance, the Senate brought the nomination to the Senate floor for a 
full debate and consideration.
  If today's majority is concerned with the American people having a 
voice on who the next Supreme Court Justice is, we should follow our 
ordinary procedures and allow our representatives in the Senate to 
consider the merits of the President's nominee. We have denied the 
American people a debate in a runup to an election. When we should be 
debating what the composition of the Supreme Court should look like, 
when we should be debating what is at stake in this Presidential 
election, our floor is empty.
  I say, again, this action has been taken in the name of conservatism. 
There is nothing conservative about this--nothing. This is a radical 
departure from standard practice. It is a threat to our democracy. It 
is a threat to judicial oversight. It is a threat to the rule of law. 
It is lawless.
  What makes this even worse is that the majority's failure to fulfill 
our constitutional responsibilities isn't even about policy, it is 
about politics. It is about rolling the dice on an election, instead of 
following the plain text of the Constitution and more than two 
centuries of Senate tradition in the history of the United States.
  We have had more than enough time to consider the merits of Judge 
Garland's nomination. The American people have watched the U.S. Senate 
take the entire summer off and not do our job. In fact, as some of my 
colleagues have noted, this Senate has worked fewer days this year than 
any Senate in 60 years, and a lot of those Senates didn't have a 
Supreme Court vacancy to fill.
  By refusing to consider the President's Supreme Court nominee for 
nearly 200 days, the majority is creating, I fear--I hope not--a new 
precedent, one that threatens to shape future vacancies to the Court 
and further politicizes the one branch of our government that is meant 
to be above the partisan bickering that has paralyzed this institution.
  It is one thing for people in this body to drive the approval rating 
of the U.S. Congress down to 9 percent, and that is a feat--that is a 
feat--but to denigrate another institution of government this 
cavalierly for politics is wrong.
  The longer this vacancy remains, the more uncertainty and confusion 
the American people will suffer. Petty politics is now jeopardizing, as 
I said earlier, not just one but two terms of the Supreme Court. We 
have to reject this unprecedented abdication of our most

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basic constitutional obligation. This is one of those things that is 
written in the Constitution, and there is no one else assigned the duty 
of doing it other than the Senate. The House has no responsibility.
  Some people here have said let the people decide. As I said earlier, 
the best way of letting the people decide is by having an open debate 
in the Senate. But the Constitution doesn't actually say let the people 
decide, it sets up what we ought to be doing.
  I fear that if we start here, where will it end? If a President can't 
have his nominee considered over 300 days from an election, why not 2 
years or 4 years from an election? Why not routinely hobble the Supreme 
Court until you get your way, until you have your President and your 
majority? Until then, we will not do the American people's business.
  Even if the Constitution does not in fact oblige us to consider 
President Obama's nominee, it is, nevertheless, it seems to me, our 
duty as responsible public servants to do so and the American people's 
obligation to hold elected officials accountable and demand a full, 
functioning judiciary.
  Believe me, I know it has become fashionable for Washington to tear 
down rather than work to improve the democratic institutions 
generations of Americans have built, but as I said, to impair so 
cavalierly the judicial branch of our government is unacceptable. It 
doesn't meet the standard of a great nation or a great parliamentary 
body. Comity and cooperation will not be restored overnight or with a 
single decision in this Senate. It has taken far too long for us to 
travel down this destructive road to deadlock, ideological rigidity, 
and bitter partisanship. Even with all of that, the least we could do 
is follow centuries of tradition and practice, preserve the judiciary 
from the partisanship that has paralyzed much of the other two 
branches, and act as conservatives by fulfilling one of our most 
fundamental duties as elected representatives.
  It is long past time for the Senate to do its job, as every Senate 
before us since its founding has done.
  Mr. President, I yield the floor.

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