[Congressional Record Volume 164, Number 114 (Monday, July 9, 2018)]
[Senate]
[Pages S4834-S4836]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Filling the Upcoming Supreme Court Vacancy
Mr. GRASSLEY. Madam President, tonight the President will announce
his nominee for Associate Justice of the Supreme Court of the United
States. That announcement is because of a vacancy created by Justice
Kennedy's recent retirement.
Justice Kennedy left an important legacy of more than three decades
on the Supreme Court. I voted for his confirmation 30 years ago.
Justice Kennedy demonstrated his deep commitment to our constitutional
liberties. It is no surprise that some of his greatest opinions
defended free speech and religious liberty. I hope Justice Kennedy's
successor carries forward this legacy.
I am optimistic that the person the President nominates tonight will
be highly qualified and committed to the rule of law. I am optimistic
because President Trump already appointed one such Supreme Court
Justice: Neil Gorsuch.
The President's selection process is the most transparent in history.
He issued a list of potential Supreme Court nominees directly to the
American people during his 2016 campaign. To my knowledge, no other
Presidential candidate has ever done that. The list demonstrated the
types of Justices he would appoint to the Bench. The American people
voted for President Trump in part because of that list of names and
what it reflected and his promise to nominate these types of jurists.
Any of the 25 people on the President's list would be an excellent
choice and worthy of the Senate's serious consideration, but already we
are seeing from liberal outside groups and some of the Democratic
leadership a desperate attempt to block the nominee--any nominee--by
whatever means necessary. Democratic leaders have pledged to block
anyone from the President's list without even knowing who that nominee
is and regardless of his or her qualifications. Think about that a
while. The President has a list of 25 names, but some Democratic
leaders have already said that not one of them is acceptable, zero out
of 25 highly respected, highly qualified individuals--not even worthy
of this body's consideration. That is an incredible statement by some
of the leaders on the other side of the aisle.
This preemptive attack on a yet-to-be-named nominee is a preview of
the obstacles and calls for needless delays we are sure to see from
some of my colleagues. I have already heard several weak arguments made
in an attempt to delay the confirmation hearing, but the Democratic
leaders have shown their hand. The motive is to block any nominee from
the President's list. Whatever reasons for delay, it is clear that
their single motivating factor is blocking the nominee selected
tonight, whoever he or she is.
The first delay tactic I heard was that the Senate shouldn't confirm
a nominee during a midterm election, but the Senate has never operated
like that. Justice Kagan and Justice Breyer were confirmed in midterm
election years, in addition to many Justices who served before them.
Democratic leadership and outside groups are so desperate to block this
nominee that they are willing to rewrite history to do it.
We have a long history of confirming Justices nominated during a
midterm election year. We don't have a long history of confirming
Justices nominated during a Presidential election year. It has been
nearly 80 years since we have done that. Former chairman Joe Biden
announced in 1992 that the Senate shouldn't confirm any Justices during
a Presidential election year. Senator Schumer said something similar in
2007--the year before a Presidential election. The Biden-Schumer rule
pertains only to Presidential elections, not midterm election years.
It is important to let the American people decide who should choose a
nominee for a Supreme Court vacancy. That is why I waited until after
the 2016 Presidential election to hold hearings for a Supreme Court
nominee. But the individual who selects nominees--the President of the
United States--is not on the ballot in midterm elections. The rule
simply doesn't apply during a midterm election, and that is this year.
Another losing talking point is that we shouldn't confirm any nominee
while Robert Mueller's investigation is ongoing. And who knows when
that is going to end. This argument is again inconsistent with the
historical precedent. Look at what President Clinton was involved in--
an investigation of that President over Whitewater. At the same time,
Justice Breyer was appointed to the Supreme Court--at a time when the
independent counsel was doing that investigation. At the time, his
documents were under a grand jury subpoena. What other constitutional
powers do the proponents of this argument believe that the President
should surrender simply because of an investigation?
This is obstruction masquerading as silliness. What drives this
preemptive obstruction, you might ask. It is liberal outside groups'
stated fear that the President's nominee will vote to invalidate the
Affordable Care Act or overturn Roe v. Wade. Well, the same five-
Justice majority who preserved the Affordable Care Act is still on the
Court. Justice Kennedy voted to strike it down. Replacing him with a
like-minded Justice would not change the outcome. We hear the same
thing about Roe v. Wade every time there is a Supreme Court vacancy. It
was a big deal when Sandra Day O'Connor was appointed to the Court 37
years ago. Yet Roe v. Wade is still the law of the land.
It is pretty clear that Justices have a way of surprising us. Who
could have predicted that Justice Scalia would strike down a ban on
flag-burning? It is a fool's errand to try to predict how a Justice
will rule on some hypothetical future case.
This regular uproar about Roe v. Wade shows the difference between
how many Democrats and Republicans view the courts.
Liberal outside groups and many Democrats have a litmus test. They
seem to be very results-oriented and focus on policy outcomes of
judicial decisions. They expect--they even demand--their judges to rule
in favor of their preferred policies. Liberal outside groups and their
allies simply want judges to be politicians hiding under robes. That is
why Senate Democrats were so blatant in changing Senate rules so that
they could stack the DC Circuit Court of Appeals. Former Democratic
leader Harry Reid made no bones about making sure there were enough DC
Circuit judges to protect the Obama administration's policies on
regulations.
Republicans, on the other hand, want judges who will rule according
to the law and leave policymaking to elected representatives, where the
Constitution prefers and demands that it be.
I don't want judges who decide cases based upon whether the results
are liberal or conservative. Judges should rule according to the law,
no matter what their views are on policy outcomes. Judge Gorsuch
recently said that judges wear ``robes, not capes.'' I agree with that
assessment.
Liberal outside groups and their allies want judges who will decide
cases with liberal policy results. Republicans expect judges to leave
their policy aside when deciding a case. That is the
[[Page S4835]]
fundamental difference that will become crystal clear to the American
people during this confirmation debate.
The Senate Judiciary Committee will hold a hearing for the nominee in
the coming weeks. Exactly when, I don't know, and I shouldn't know at
this point. I want to emphasize a few things, though. One, it is
inappropriate for Senators to ask the nominee how he or she would rule
on certain cases sometime in the near future or 10 years from now. Two,
it is inappropriate to ask the nominee about his or her personal views
on the merits of Supreme Court precedent.
The bottom line is that Senators should not try to extract assurances
from nominees on how they will decide particular cases in exchange for
a confirmation vote because how do you know down the road--1 year or 2
years or 15 years--what the case might be at that particular time?
Justice Ginsburg made it pretty simple for everybody. During her
confirmation hearing in the early 1990s, she set the standard,
promising, in her words, ``no hints, no forecasts, no previews.'' She
said this in a further long quote:
It would be wrong for me to say or to preview in this
legislative chamber how I would cast my vote on questions the
Supreme Court may be called upon to decide. Were I to
rehearse here what I would say and how I would reason on such
questions, I would act injudiciously.
This standard was reaffirmed by every Supreme Court nominee since
then. For the last 25 or 26 years, the Ginsburg rule has been what is
followed by other nominees for the Supreme Court. Justice Kagan said
this about Roe v. Wade, following the Ginsburg rule:
I do not believe it would be appropriate for me to comment
on the merits of Roe v. Wade other than to say that it is
settled law entitled to precedential weight. The application
of Roe to future cases, and even its continued validity, are
issues likely to come before the Court in the future.
I expect this nominee announced tonight to likewise follow the
Ginsburg standard. I will ask the nominee how he or she views the law
and a Justice's role on the Bench. I will not presume to know how a
nominee will rule on any case that might come before the Court today,
tomorrow, or 10 years from now. I certainly will not be basing my vote
on whether I think I will agree with the majority of his or her
decisions.
The press has reported that the President has focused on six or seven
potential nominees for this vacancy. Each one is well qualified and
would make an outstanding Supreme Court Justice.
The nominee will get a full and fair hearing. Under my watch, the
Senate Judiciary Committee will never be a rubberstamp. Several recent
nominees to lower courts learned that the hard way.
The process will be fair and will be transparent, as much as I can
make it. That has been my approach during my nearly 38 years in the
Senate--and all of those 38 years on the Senate Judiciary Committee--
and I will not change that. The American people must be confident that
this Senate has fulfilled its constitutional duty of very independently
vetting this nominee before we confirm a Justice to a lifetime
appointment on the highest Court in the land.
I eagerly await the President's announcement this evening. I look
forward to hearing from the nominee when he or she appears before the
Senate Judiciary Committee.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Moran). The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Ms. HIRONO. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. HIRONO. Mr. President, I have been consistently voting against
cloture motions to proceed to debate on judicial nominations because
the process by which we are considering these nominations has been
deeply broken.
I will again, today, be voting no on cloture even though the nominee
we are voting on to fill a vacancy on the U.S. Court of Appeals for the
Ninth Circuit is Mark Bennett from Hawaii. I support Mark Bennett's
nomination, and I spoke on his behalf during the Senate Judiciary
Committee hearing. When debate time ends, I will vote for his
confirmation.
Mark is recognized as being one of the best qualified lawyers in the
State of Hawaii. He has served as a Federal prosecutor, our State's
attorney general, and in private practice. He has experience in trial
and appellate work, on civil and criminal matters, at the State and
Federal levels. He understands legislating and has served in the
executive branch. He has received high ratings from the American Bar
Association and from the Hawaii State Bar Association. He is well
respected and has been honored multiple times by his colleagues.
I have every confidence that Mark will put his skills and experience
to good use on the bench as a fair and impartial judge who is beholden
to nothing but the law and the Constitution. However, as has been my
practice since the beginning of this Congress and session, I will vote
no on cloture on Mark's nomination. I will vote this way to call
attention to my disagreement and deep concern over how the Senate
Judiciary Committee is conducting its judicial nomination hearings.
The Senate has a constitutional obligation to provide advice and
consent on judicial nominees, and I take this obligation very
seriously. The American people depend on the Senate to fully consider
and vet each judicial nominee. Throughout the course of their lifetime
appointments, these judges will issue rulings and opinions that will
touch each of our lives. The process of nominating, considering, and
confirming judges should be a deliberate one. Its purpose should not be
to confirm as many judges as quickly as possible. Senators should be
able to provide input on who should sit on the Federal bench. Senators
should have adequate opportunity to hear from third-party experts about
the records and qualifications of each nominee, and Senators should
have enough time to question and examine a nominee during the
confirmation hearing. Yet, over the past year and a half, we have seen
a breakdown in the way this process should work.
The President has, essentially, outsourced the judicial selection
process to two organizations that have strong, ideologically driven
agendas--the Federalist Society and the Heritage Foundation. These
nominees have been chosen without the consent of their home State
Senators, as has been the practice through what is known as the blue-
slip process. By ignoring the traditional blue-slip process, the
President and his allies in Congress have been rendering the Senate's
constitutional obligation to provide advice and consent increasingly
meaningless.
The White House and the chairman of the Judiciary Committee have also
undermined the independent processes through which the American Bar
Association's Standing Committee on the Federal Judiciary evaluates
whether a nominee is qualified for the job. Ignoring this traditional
process has resulted in the nominations and confirmations of a number
of deeply unqualified judges. Some of these nominees have been unable
to answer basic questions about judicial procedure or the law during
their confirmation hearings. Others lack the kind of experiences one
would want in those who will have lifetime appointments to the Federal
courts.
Under this administration, we have also seen the rushed
considerations of many nominees for the Federal circuit courts. Judges
who serve on our circuit courts are only one step away from the Supreme
Court and deserve to be scrutinized closely in the Judiciary Committee.
Over the last year and a half, however, the Judiciary Committee has
overridden the objections of the minority to hold an unprecedented six
nomination hearings with more than one circuit judge nominee being
considered simultaneously on one panel. This means that members of the
Judiciary Committee have only 5 minutes in total to ask questions of
not just one but two circuit court nominees, including the time it
takes for them to answer our questions. This is scarcely enough time to
vet these nominees, many of whom are highly controversial and deserve
maximum scrutiny. The American people deserve much more as we consider
lifetime appointments to the Federal bench.
[[Page S4836]]
Until we return to a normal process through which we consider
lifetime appointments to the Federal bench, I will continue to oppose
cloture on each judicial nomination by this President and encourage my
colleagues to join me in this effort.
I yield the floor.