[Congressional Record Volume 166, Number 164 (Tuesday, September 22, 2020)]
[Senate]
[Pages S5736-S5738]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Supreme Court Nominations

  Madam President, in the wake of a Supreme Court Justice's death, the 
Senate has to turn its thoughts to considering the next Supreme Court 
nominee. The President has indicated that he expects to nominate 
Justice Ginsburg's successor as soon as this week. He has also made it 
clear he intends to nominate a woman.
  Whomever he nominates, I am confident that she will be in the mode of 
the President's other Supreme Court appointments, a nominee with a 
profound respect for the law and the Constitution, someone who 
understands that the job of a Supreme Court Justice--or any judge--is 
to interpret the law, not make the law, to call balls and strikes, not 
rewrite the rules of the game.
  Predictably, Democrats are in an uproar over the fact that President 
Trump will nominate a third Supreme Court Justice. They want 
Republicans to refuse to consider the President's nomination before the 
President has even named anyone.
  They claim that the fact that a Republican-led Senate did not 
consider the nomination of Merrick Garland during President Obama's 
final year means Republicans should decline to consider President 
Trump's nominee.
  It is perfectly true that the Senate did not vote on President 
Obama's final Supreme Court nominee. That is something the Senate can 
choose to do. Any Senate, led by either party, can decline to take up a 
nominee. That is the Senate's constitutional prerogative.
  At the time, we felt that since voters had recently chosen a 
Republican-led Senate, while the President was a Democrat on his way 
out of office, the new President should choose the next Supreme Court 
nominee. And we all knew at the time that very well could be Hillary 
Clinton. But that was wholly in line with the history of the Senate--
and with the rule promulgated by Joe Biden when he was chairman of the 
Judiciary Committee, and endorsed, I might add, by the current 
Democratic leader in 2007.
  As a Wall Street Journal op-ed explained:

       This exception was popularized in 1992 by Sen. Joe Biden, 
     then chairman of the Judiciary Committee. He urged President 
     George H.W. Bush to refrain from making any Supreme Court 
     nominations in that election year. What made 1992 different 
     from other election years, Mr. Biden explained, was that 
     ``divided Government'' reflected an absence of a ``nationwide 
     consensus'' on constitutional philosophy. ``Action on a 
     Supreme Court nomination must be put off until after the 
     election campaign is over,'' the future vice president 
     insisted. No vacancy arose until 1993, when President Clinton 
     was in the White House and Ginsburg's nomination easily 
     passed a Democratic Senate. But the Biden rule fit 2016 to a 
     tee.

  For the past 130-plus years, no Senate has approved a Supreme Court 
nominee in the final year of a President's term if the Senate majority 
and the President were of different parties.
  On the other hand, a number of Supreme Court nominees have been 
confirmed during a President's final year in office when the Senate was 
led by the same party as the President.
  There have been 15 situations in U.S. history where a Supreme Court 
vacancy arose in a Presidential election year, and the President 
nominated someone that same year. In eight of those cases, the 
President and the Senate majority were of the same party. And in all 
but one of those eight cases, the President's nominee was confirmed.
  Democrats are free to disagree with Republicans' application of the 
Biden-Schumer rule in 2016, but no one can dispute that voting on or 
rejecting a nominee is the constitutional prerogative of the U.S. 
Senate.
  There should be nothing disturbing about the Senate fulfilling its 
constitutional role of advising and consenting on a Supreme Court 
nomination.
  What is disturbing are Democrats' threats as to what they will do if 
Republicans in the Senate don't yield to their demands. Those threats 
include, but are not limited to, eliminating the legislative 
filibuster, which is the rule we all know in the Senate that helps 
ensure that bills that come before the Senate require bipartisan 
cooperation; they threatened to pack the Supreme Court with additional 
Justices so that they can ensure a rubberstamp for their agenda.
  Some are even suggesting--suggesting impeaching the President again. 
What they would impeach him for is not exactly clear. Fulfilling his 
constitutional responsibility to name someone to the Supreme Court?
  Some Democrats have gone so far as to say that nothing is off the 
table when it comes to retribution for considering the President's 
nominee--a particularly insidious and irresponsible threat at the time 
when political violence is at a high in this country.
  One thing I can say is that Republicans will not be deterred from 
performing our constitutional role by Democrats' undemocratic threats. 
For many of us, confirming principled judges who will uphold the 
Constitution and the rule of law has been a core tenet of our public 
service--and a shared goal of those who elected us.
  We will work to fill the Supreme Court vacancy, and I look forward to 
receiving and reviewing the President's nomination in the near future.
  I yield the floor.
  The PRESIDING OFFICER. The Democratic whip.
  Mr. DURBIN. Madam President, I listened to the statements made by the 
Republican leadership this morning on the floor of the U.S. Senate. If 
one has a sense of history and memory, their statements are 
preposterous.
  The last speaker came before us and said: The Democrats are even 
threatening to end the filibuster in retribution.
  Well, let's stop and think for a moment. Was there a filibuster 
affecting the Supreme Court nominees? Was there a requirement of 60-
vote margins if there is controversy associated with filling the 
vacancy on the Supreme Court? There was until one Senator from 
Kentucky, Mr. Mitch McConnell, eliminated the filibuster when it came 
to the Supreme Court.
  This so-called democratic institution of the filibuster was 
eliminated when it came to Supreme Court nominees by that same Senator 
McConnell, who comes to the floor and says that the Democrats have 
reached an outrageous position: They are threatening the future of the 
filibuster.
  He eliminated it. When there were changes made in the filibuster on 
other court appointments, Senator Reid was careful not to include the 
Supreme Court, but Senator McConnell did. Senator McConnell has brought 
us to this moment.
  Think how different it would be--how different it would be today if 
the nominee of this President were subject to a

[[Page S5737]]

filibuster. If it took 60 votes, it means the person nominated would 
have to be moderate in their approach. We don't expect that from this 
President in filling the vacancy of Ruth Bader Ginsburg.
  I also read and reread one simple fact when it came to Ruth Bader 
Ginsburg in 1993. She cleared the Senate Chamber, at a time when the 
filibuster rule did apply, with a vote of 96 to 3--96 to 3.
  Understand that Ruth Bader Ginsburg was a well-known person when she 
came before this body for approval to the Supreme Court. She had been 
an outspoken advocate for women's rights and equality as an attorney 
and advocate for groups like the American Civil Liberties Union. She 
had served on the DC Circuit Court of Appeals.
  As well known as she was for her political beliefs, she cleared this 
Senate Chamber with only three dissenting votes--Senator Jesse Helms, 
Senator Don Nickles, and Senator Bob Smith--three Republicans. What a 
different time it was. Even though her stripes were clear, she was so 
well respected as a jurist and a person of integrity that she was 
approved by the Senate Chamber.

  How far we have fallen. We are in a position now, at this moment, 
when Senator McConnell, 4 years ago, established a standard. The 
vacancy of Scalia's seat on the Supreme Court led President Obama to 
nominate Merrick Garland, a well-respected judge from the DC Circuit. I 
remember seeing him and meeting with him after he had been proposed by 
President Obama. It was a sad duty to watch him as he walked the Halls 
of the Senate. You see, Senator McConnell announced that he didn't want 
any Republican Senators to physically meet with Merrick Garland--not 
give him the recognition of even a meeting in their office, let alone a 
hearing. The argument that Senator McConnell made--and Senator Schumer 
said this morning--was that it wasn't President Obama's place to fill 
that vacancy; it was the place of the next President of the United 
States.
  Senator McConnell, basically, declared President Obama was a lameduck 
when it came to Supreme Court vacancies in his last year in office and 
that the next President, whoever that might be, would make the choice. 
Well, one after another, the Republican Senators marched in line behind 
that McConnell position, announcing that they, too, agreed that 
President Obama was a lameduck when it came to filling Supreme Court 
vacancies in his last year in office. They didn't cite the Constitution 
because there is no provision in the Constitution that even comes close 
to that suggestion. There certainly wasn't any law, and there wasn't 
any precedent.
  I hear the Republicans come to the floor mentioning Joe Biden's name 
and Chuck Schumer's name. Who knows who will be next on their list? The 
fact is, the Senate makes the decisions based on majority. At that 
point, Senator McConnell had the majority, and he lined up his 
membership behind him.
  Unfortunately, they are lining up again, but this time Senator 
McConnell's position is the exact opposite. This time he is arguing 
that because there is a Republican President, he should fill this 
vacancy instantly: Get it done. Let's go. His Republican Senators who 
took the opposite position 4 years ago are finding some rationalization 
to follow him again.
  What is at stake in this, of course, is not just the Senate, the 
comity of the Senate, the respect we have for one another, the respect 
we have for traditions one way or the other and that they be followed 
regardless of the President's party; what is at stake, unfortunately, 
is also the Supreme Court. This institution, the third branch of 
government, is part of a strategy that Senator McConnell has been 
pushing forward for years now. It is the intent of the Republicans in 
the Senate, through Senator McConnell, to take control of the third 
branch of government, the judicial branch. They are desperate to do it. 
Time is not on their side.
  The demographics of America cannot be held back simply by voter 
suppression. They have to count on jurists from every level of the 
Federal judiciary to adhere to their minority point of view on so many 
important issues. Ironically, one of those issues is the role of women, 
the equality of women in America. Ruth Bader Ginsburg argued for that 
her whole life. She was smart enough to know she was taking her 
argument to a lot of male judges, so she argued for equality for men, 
as well as women, during the course of her career on and off the bench.
  She was principled, determined, and successful. As an attorney, she 
argued and won multiple cases in the Supreme Court in the 1970s, 
eventually persuading the all-male Court to apply the 14th Amendment's 
equal protection clause to sex-based discrimination. Sadly, we can 
predict with almost 100 percent certitude that if Donald Trump and 
Mitch McConnell choose her successor, that principle will be under 
fire; in fact, it may not even survive.
  For all the kind speeches about this principled woman and what she 
gave to America--and they are well deserved about Ruth Bader Ginsburg--
watch the nominee who comes from the Trump White House and you will 
find, I am afraid, they are not even close to the standard that she 
argued for and succeeded.
  Today, we are 6 weeks from election day and 7 weeks from the Supreme 
Court taking up another case, one which I think is relevant and 
important to every single American. The question the Court will decide 
is whether the ACA--ObamaCare--will survive. President Trump and 
Majority Leader McConnell want to rush the nominee before the Senate 
before these two dates arrive.
  Do you recall, not that many years ago, when the Republicans 
controlled the House of Representatives and voted, I believe, 50 
different times to eliminate the Affordable Care Act? Were it not for a 
Democratic Senate, they might have achieved their goal. Each and every 
time they were asked: What would you replace it with? What would you 
say to the 20 million Americans who depend on the Affordable Care Act 
for their source of health insurance? What would you say to the rest of 
America who depend on the Affordable Care Act for fundamental 
protections in health insurance and protections, such as no 
discrimination based on preexisting conditions?
  Americans understand that. Virtually every family has a story to tell 
of someone in their own family with an illness that could be considered 
a preexisting condition. The insurance industry even went so far at one 
point as to say being a woman was essentially a preexisting condition. 
Based on that, the health insurance industry would either charge higher 
premiums or refuse coverage.
  We got rid of those days. We ended that with the Affordable Care Act. 
We ended it with ObamaCare. And now the Republicans, again, want the 
insurance industry to have that power over your life. As of this 
morning, 6 million Americans have been reported as diagnosed with 
COVID-19. Trust me, the insurance industry would make that a 
preexisting condition for them and for any others in the future who 
should turn up positive on these COVID-19 tests.

  What the Republicans are seeking to do in the Supreme Court is what 
they failed to do on the floor of the Senate. They tried on the Senate 
floor many times--and the last time is well remembered--to end the 
Affordable Care Act. Those of us who were here that night watched as a 
handful--perhaps three--Republican Senators said no. We all remember 
that moment after he had been on the phone with President Trump when 
John McCain, the late Senator from Arizona, came through those doors at 
2:30 in the morning and cast his ``no'' vote in the well of the Senate 
Chamber. I was there just a few feet away and watched every second of 
it. It was gripping. It was exciting. For many people, it was giving 
them another chance to protect themselves with health insurance, 
something the other Republicans were determined to eliminate.
  John McCain said then and we say now: If you have a better idea on 
the Republican side--President Trump, if you have a better idea than 
the ACA--let's see it. How many times has this President made an empty 
promise: We have a substitute; I will give it to you in a week, 2 
weeks, 3 weeks. They don't have one.
  Recently, at a hearing before the Appropriations Subcommittee, I 
asked

[[Page S5738]]

three leading health experts and doctors in the Trump administration if 
any of them had worked on the so-called Republican substitute. Not a 
one. It doesn't exist. It is just an empty answer and an imperfect 
answer, at best, from this administration.
  I remember February 13, 2016, when Justice Scalia just passed away in 
a Presidential election year and Senator McConnell said, to the 
surprise of many of us, the following:

       The American people should have a voice in the selection of 
     their next Supreme Court Justice. Therefore, this vacancy 
     [the Scalia vacancy] should not be filled until we have a new 
     President.

  He stated the McConnell rule in February of 2016, an election year. 
Here it is:

       The American people should have a voice in the selection of 
     their next Supreme Court Justice. Therefore, this vacancy 
     should not be filled until we have a new President.

  It is pretty clear, isn't it?
  Well, Republican Senators all lined up behind him in this new 
statement of principle and denied Merrick Garland not only a hearing 
but even the courtesy of an office appointment for most of them. The 
McConnell rule is clear and unambiguous, and the 2016 Republicans 
dutifully fell in line behind it. They said that the American people 
should have the last word. An election year Supreme Court vacancy 
should be filled in the next Presidential term.
  Senator McConnell claims that his rule really had an asterisk at the 
end. I don't see one. He said it really depends on which party controls 
the Senate. Well, that is certainly a distinction without a difference. 
Why should the composition of the Senate dictate whether or not the 
American people ``should have a voice in the selection of their next 
Supreme Court Justice''? Either the American people have a voice 
regarding the future of the Court when there is a vacancy in an 
election year or they don't.
  Four years ago, Senator McConnell said they do. Now he says they 
don't. It is a flip-flop and, oh, the painful contortions I see among 
most Republican Senators trying to rationalize posing for holy pictures 
4 years ago, saying that the American people should have the last word 
and then 4 years later, completely reversing themselves--but they do.
  This is not just some Washington debate. The stakes in this debate 
are important for every American. It isn't about who gets the last word 
on MSNBC or FOX; it is about who gets the last word when you learn 
someone in your family has a devastating illness and you are praying to 
God you have a health insurance plan that will cover it.
  President Trump has made clear he wants to strike down the entire 
Affordable Care Act even without a substitute. That is the position the 
Trump administration took before the Supreme Court in a case that will 
be argued just days after this November 3 election.
  President Trump has also made it clear that when he picks a new 
Supreme Court Justice, he wants them to agree with him when it comes to 
eliminating the Affordable Care Act.
  I would say to people across America: Be prepared. If Mitch McConnell 
gets his way, if Donald Trump gets his way, if they install a new 
Supreme Court Justice who has taken this oath--this political oath to 
following the Trump plan--all of America will be at risk because the 
protections of the Affordable Care Act will be eliminated by that 
Supreme Court.
  In 2015, Donald Trump tweeted, as he often does: ``If I win the 
Presidency, my judicial appointments will do the right thing unlike 
Bush's appointee John Roberts on ObamaCare.'' We certainly know what 
that means because at least on one occasion, John Roberts has kept 
ObamaCare alive.
  Let's be clear. The Affordable Care Act is hanging in the balance in 
just a few days. The healthcare coverage and protections for 
preexisting conditions that millions of American families rely on are 
at risk. Republicans were never able to repeal the Affordable Care Act 
in the House or on the floor of the Senate--thank you, John McCain--so 
they want to do it in the Court. They are trying to accomplish in the 
Supreme Court what they cannot accomplish in Congress. If President 
Trump and Senator McConnell go through with their plan to jam through a 
Supreme Court nominee this year, the Affordable Care Act is doomed.
  Did you hear last night when the chairman of the Senate Judiciary 
Committee announced--I saw it this morning on television. He announced 
that every single Republican Senator on the Senate Judiciary Committee 
is going to vote for the Trump nominee for the Supreme Court. We don't 
have a nominee yet, do we? The President said he will not announce one 
until Saturday of this week. Here is this announcement by the 
Republican chairman of the Senate Judiciary Committee: He's counted the 
votes. It is a done deal.
  What does it tell you? It tells you it doesn't make any difference 
whom the President nominates--the silence of the lambs in the U.S. 
Senate.
  If President Trump and Senator McConnell go through with this plan, 
America will feel it, and every family will know it. That is why my 
Republican colleagues refuse to give the American people the last word 
on November 3. They are so uncertain of the reelection of Donald Trump, 
they have to do this now, quickly. They are afraid he will not be 
renominated, that he will not be reelected, and that he will not be in 
a position to fill this vacancy next year. So they are breaking their 
own promise to the American people to respect their judgment in the 
selection of the Supreme Court nominee.