[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.