[Congressional Record Volume 162, Number 170 (Tuesday, November 29, 2016)]
[Senate]
[Pages S6536-S6537]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. CORNYN. Mr. President, earlier this year the Republican 
leadership made a somewhat controversial decision, but when you think 
about it, it shouldn't have been all that controversial. It was to 
allow the American people, by their selection for the next President of 
the United States, to express their views about who ought to be

[[Page S6537]]

nominated to the vacancy left by the untimely death of Justice Antonin 
Scalia. This is not an easy decision, but the fact remains that the 
Supreme Court considers rules on some of the most pressing, challenging 
questions of our time. It does some very important things, such as 
interpreting the Constitution. They are the final word. It also 
guarantees liberty by the separation of powers and enforcing the Bill 
of Rights and the like.
  It is no exaggeration to say that the Supreme Court affects the lives 
of every man, woman, and child in our country, and it is obviously a 
truism that the people who occupy those seats will have a very clear 
impact on the future direction of not only the Court but our country.
  We have to consider lifetime appointments carefully. As Justice 
Scalia liked to say during his lifetime, why in the world should people 
trust nonelected judges to make value judgments and in so doing, 
substitute their judgment for the views of the duly elected Members of 
Congress who represent the American people and who are politically 
accountable? That is why he said judges ought to take a rather limited 
role, or view of their role, under the Constitution. I agree with him.
  The role of the judiciary is not to say what the law should be but, 
rather, what the law actually is. Unfortunately, we know the Supreme 
Court of the United States has become such a controversial place in 
large part because of its tendency to substitute its value judgments 
for those of the American people or to read into the Constitution words 
that nobody found in the last 200 years, but miraculously somehow they 
sprung up with new meaning, resulting in the creation of a new 
constitutional life that nobody ever dreamed existed before.
  It is true that the Supreme Court plays an essential function in our 
government, and there was simply too much at stake not to let the 
American people, through their selection of the next President, have a 
say. Well, suffice it to say, 3 weeks removed from election day, it is 
clear that we heard their voice. I think by the selection of Donald 
Trump as the next President of the United States, the American people 
clearly realized that even though the Supreme Court wasn't on the 
ballot, the person who selected the next Supreme Court Justice--perhaps 
the next two or three--was clearly on the ballot, and there was a clear 
difference between those choices. I think people realized that 
Secretary Clinton would likely appoint more judges in the tradition of 
people like Justice Ginsburg and Justice Sotomayor, people who 
demonstrated their record of being willing to take some license with 
the Constitution and the laws and basically rewrite them in their own 
image.
  I think the American people knew they were choosing between activist 
judges who essentially operated as unaccountable, unelected legislators 
wearing black robes or judges who believed in the more traditional role 
for the judiciary--judges who actually interpret the written words on 
the page passed by the Congress and signed into law or the Constitution 
itself. I believe that is how our Founding Fathers intended our 
separation of powers to work.
  The judiciary is not supposed to be a substitute for Congress and the 
political branches; it is supposed to represent a check and balance to 
make sure that the laws that are passed do not violate the Constitution 
as written and that the laws that are passed are faithfully enforced 
according to the words in the statute.
  I, for one, look forward to considering President-Elect Trump's 
nominee to the Supreme Court in due time. Since I have been in the 
Senate, I have had the privilege of participating in the nomination and 
confirmation of four Justices to the U.S. Supreme Court. As members of 
the Judiciary Committee, we are at ground zero in that process, and I 
know Chairman Grassley is already preparing, along with members of the 
committee, to receive the nomination of President-Elect Trump. We don't 
know whom he will nominate to the Court yet, but he has given the 
American people a pretty good idea of the type of jurist he would 
nominate. I think that is one of the reasons millions of Americans 
voted for him. They wanted an administration committed to the 
Constitution, and they saw that commitment reflected in the list of men 
and women President-Elect Trump circulated as potential nominees to the 
Court.
  Now that we have heard from the American people, I look forward to 
going through the confirmation process once again. I am sure it will be 
a rigorous contest of ideas. I am sure there will be a lot of different 
views expressed, and that is OK. But in the end, I am confident that we 
will elect President-Elect Trump's nominee to the Supreme Court. I am 
optimistic that it will be somebody in the tradition of Justice Scalia, 
somebody who believes in upholding the rule of law in the country.
  Having been a member of the State judiciary for 13 years, I have some 
pretty strong views on this topic. If people want to take on the role 
of a policymaker, I believe they ought to run for Congress or some 
legislative office or maybe run for President. They shouldn't seek to 
be a judge on the Federal court or in the court system because that is 
not primarily a policymaking role. It is important but perhaps less 
exciting in some ways or at least is a less visible way of interpreting 
the Constitution and the laws passed by Congress. That is important and 
straightforward enough, but it is important that the people who are 
nominated and confirmed understand what their important but limited 
role is under our constitutional government.
  As I said, we need a Justice like the late Justice Scalia, who 
believed that the words in the Constitution matter. We need a Justice 
who brings some sense of humility to the bench. That is a very 
important quality. I remember Chief Justice Roberts talking about the 
importance of humility when it comes to the job of judging. When one 
has a lifetime tenure job and can't be removed from office except by 
impeachment, that gives them a lot of latitude to do things that 
perhaps maybe humility would dictate that we not do. So we need people 
of good character, people with the requisite qualifications and 
experience and with the right judicial philosophy, I believe. We need a 
Justice who will fight for the Court to take its proper role as a check 
against executive or legislative overreach, but it ought to be 
constrained by the words of the Constitution as written and by the 
words in the legislation Congress has passed. There is no justification 
under our Constitution for a judge who simply views their position as 
license to do what they want or substitute their opinion for that of 
the elected representatives of the people.
  I am optimistic we will be able to move forward with President-Elect 
Trump's nominee to fill the bench and will soon be up to full speed of 
nine Justices. Through President Obama's tenure, we saw the Senate 
confirm two of his Justices to the Supreme Court. As I mentioned, those 
are two of the four confirmations in which I have had the pleasure of 
participating in the confirmation process. President Obama was able to 
replace two members of the Court.
  In recent months, we heard our friends across the aisle say how 
important it is to fill the vacancy left by the death of Justice 
Scalia. We know they disagreed with us on our decision to leave that 
decision to the voters who selected the next President, but I trust 
they will feel the same way now--that it is important that we fill this 
bench without undue delay now that the people have spoken.
  It is the American people who I believe have made a choice in the 
type of Justice they want confirmed to the Court. They have determined 
that what our country needs is a Justice committed to the rule of law 
and to the Constitution--not politics, not value judgments, but 
enforcing the law as written. I look forward to helping the new 
administration deliver that for the American people.

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