[Congressional Record Volume 166, Number 164 (Tuesday, September 22, 2020)]
[Senate]
[Pages S5740-S5742]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Unanimous Consent Request

  Mr. SCHUMER. Madam President, over the course of her extraordinary 
life, Justice Ginsburg did as much to advance the cause of justice as 
she could manage. She was a trailblazer of women from all ages, from 
all walks of life, who watched her tear down the barriers that 
separated men from women, first from outside the corridors of power, 
then within them.
  As I said this morning, it is only fitting that she will be the first 
woman to ever lie in state at the Nation's Capitol. After all, she made 
a life's work

[[Page S5741]]

out of going where women had not gone before.
  I rise now to offer a resolution that will honor her long and 
illustrious career. Republicans came to us with this resolution, but it 
ignored Justice Ginsburg's dying wish, what she called her most fervent 
wish, that she not be replaced until the new President is installed. We 
simply have added to the exact same text of the resolution the 
Republicans gave us.
  All the kind words and lamentations about Justice Ginsburg from the 
Republican majority will be totally empty if those Republicans ignore 
her dying wish and instead move to replace her with someone who will 
tear down everything she built; someone who could turn the clock back 
on a woman's right to choose; someone who could turn back the clock on 
marriage equality; someone who would make it impossible to join a 
union; someone who could take healthcare away from tens of millions of 
Americans, send drug prices soaring, and rip away protections for up to 
130 million Americans with preexisting conditions. That is what we are 
talking about when we talk about this vacancy.
  For hundreds of millions of Americans, everything is on the line. 
Perhaps that is why Justice Ginsburg expressed her ``fervent'' wish 
that she not be replaced until the next President is installed. She 
knew how important the Supreme Court was in American life, and she knew 
there would be great temptation to take advantage of the timing of her 
death for political purposes. She knew the risks of her vacancy turning 
into a power game driven by rank partisanship, so she expressed a 
simple idea: Let the next President decide, whoever it might be. It 
could be President Trump, it could be Vice President Biden, but let the 
next President decide.
  Don't rush a nominee through mere days before an election in what is 
sure to be the most controversial and partisan Supreme Court nomination 
in our Nation's entire history.
  Maybe Justice Ginsburg hoped that her dying wish could save the 
Senate majority from itself. It doesn't appear that way, but here on 
the floor this afternoon, we ask our colleagues to acknowledge her 
entire life and legacy, including her dying wish.
  As in legislative session, I ask unanimous consent that the Senate 
proceed to the immediate consideration of the Schumer resolution 
related to the death of Ruth Bader Ginsburg, Associate Justice of the 
Supreme Court of the United States, which is at the desk. I further ask 
that the resolution be agreed to, the preamble be agreed to, and that 
the motions to reconsider be considered made and laid upon the table 
with no intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Texas.
  Mr. CRUZ. Reserving the right to object, this endeavor started with a 
resolution that the majority put forward that was intended to be a 
bipartisan resolution commemorating the life and service of Justice 
Ruth Bader Ginsburg. That follows the bipartisan tradition this body 
has followed in commemorating Justices when they have passed.

  Unfortunately, the Democratic leader has put forth an amendment to 
turn that bipartisan resolution into a partisan resolution. 
Specifically, the Democratic leader wants to add a statement that 
Justice Ginsburg's position should not be filled until a new President 
is installed, purportedly based on a comment made to family members 
shortly before she passed.
  That, of course, is not the standard. Under the Constitution, members 
of the Judiciary do not appoint their own successors. No article III 
judge has the authority to appoint his or her own successor. Rather, 
judicial nominations are made by the President of the United States, 
and confirmations are made by this body, the U.S. Senate.
  I would note that Justice Ginsburg was someone whom I knew 
personally. I argued nine times before Justice Ginsburg at the Supreme 
Court. She led an extraordinary life. She was one of the finest Supreme 
Court litigators to have ever practiced. She served 27 years on the 
Court, leaving a profound legacy. Justice Ginsburg understood full well 
that the position being put forth by the Democratic leader is not the 
law and is not the Constitution. Indeed, I will quote what Justice 
Ginsburg said just 4 years ago.
  Reported in the Washington Post on September 7, 2016, Justice 
Ginsburg is reported to have said:

       The president is elected for four years not three years, so 
     the power he has in year three continues into year four. 
     Maybe members of the Senate will wake up and appreciate that 
     that's how it should be.

  Now, of course, when Justice Ginsburg said that, that was when 
President Obama had made the nomination of Merrick Garland to the 
Supreme Court, and the Senate had declined to consider that nomination. 
Without even a hint of irony, every Democrat who is now screaming from 
the ramparts that we cannot consider a vacancy on the Court during this 
election year was screaming equally as loudly from the ramparts that we 
must consider a nomination during a Presidential election year just 4 
years ago.
  Joe Biden vociferously called for the Senate to consider that 
nomination. Barack Obama called for the Senate to consider that 
nomination. Hillary Clinton called for the Senate to consider that 
nomination. The Democratic leader said the Senate was not doing its job 
if we didn't consider that nomination. To my knowledge, every 
Democratic Member of this body, likewise, decried the decision not to 
take up that nomination and insisted the Senate was not doing its job.
  Well, today, obviously, the situation has changed, whereby all of 
those Democratic Members who demanded the Senate take up a nomination 
to the Supreme Court are now demanding the Senate not take up a 
nomination to the Supreme Court.
  To be sure, the Republican majority that declined to consider that 
nomination is now going to take up President Trump's nomination to this 
vacancy, but I would note the circumstances are markedly different, and 
history and more than two centuries of precedent are on the side of 
what this Senate will do.
  The question of whether a President should nominate a Supreme Court 
Justice to fill a vacancy that occurred during a Presidential election 
year has occurred 29 times in our Nation's history. This is not new--29 
times. Of those 29 times, Presidents of both parties, Democrats and 
Republicans, have nominated Justices 29 times. Every single time there 
has been a vacancy during a Presidential year, a President has 
nominated a Justice to that vacancy. Of the 44 individuals who served 
as President of the United States, 22 have done so. Fully one half of 
the Presidents who have ever served this country have made Supreme 
Court nominations during Presidential election years.
  So what is the difference?
  Well, there is a sharp difference in our Nation's history depending 
upon whether the Senate is controlled by the same party as the 
President or a different party from the President. So, of the 29 times 
in history, in 19 of those times, the Senate and the Presidency were 
controlled by the same party. When that happened, the Senate took up 
and confirmed those nominees 17 of the 19 times.
  Do you want to ask what history shows this body does when the 
President and the Senate are of the same party and a nomination is made 
during a Presidential election year? This body takes up that nomination 
and, assuming a qualified nominee, confirms that nominee.
  On the other hand, what happens when the President and the Senate are 
of different parties? Well, that has happened 10 times in our Nation's 
history. In all 10 times, the President has made a nomination, but in 
those circumstances, the Senate has confirmed those nominees only 
twice, and 2016 was one of those examples.
  Now, the Democratic leader gave a passionate speech, which I know he 
believes, about what kind of Justice he would like to see on the Court. 
Democratic Members of this body have long championed judicial activists 
who would embrace a view of the Constitution that, I believe, would do 
serious damage to the constitutional liberties of the American people.
  The interesting thing about the Democratic leader's speech is that 
the argument was presented to the voters, and the voters disagreed. In 
2016, Hillary Clinton promised to nominate Justices just like the kind 
the Democratic

[[Page S5742]]

leader said he wanted to see, and President Trump promised to nominate 
Justices ``in the mold of Justice Scalia and Justice Thomas.'' The 
American people had that issue squarely before them, and the voters 
chose that we wanted constitutionalist judges nominated to the Supreme 
Court. It was not only regarding the Presidential election but the 
Senate majority. The American people voted for a Republican majority in 
the Senate in 2014. The American people voted for a Republican majority 
again in 2016, and, in 2018, the American people grew our majority.
  In all three of those elections, the question that the Democratic 
leader has put forward was directly before the voters. What kind of 
Justices do you want? The voters clearly decided and had given a 
mandate.
  The President has said he is going to nominate a Justice this week. 
That is the right thing to do. This body, I believe, will take up, will 
consider, that nomination on the merits, and I believe we will confirm 
that nominee before election day. That is consistent with over 200 
years of Senate precedent from both parties.
  There is, however, something that the Democratic leaders and 
Democratic Members of this body are threatening that is not consistent 
with history or precedent or a respect for the Constitution, and that 
is, namely, a threat to pack the Supreme Court. We have heard multiple 
Democrats say that, if the Senate confirms this nominee and the 
Democrats take the majority next year, they will try to add two or 
four--or who knows how many--Justices to the Supreme Court. Well, you 
know, there was another Democratic President who tried to do that--FDR. 
Even though he had a supermajority, the Democratic Congress rejected 
his efforts as an effort to politicize the Supreme Court.

  Since the Democratic leader believes we should follow the wishes of 
Justice Ginsburg, I think it is worth reflecting on what Justice 
Ginsburg said about this. She was asked about this in an interview with 
NPR, and her statement was as follows:

       Nine seems to be a good number. It's been that way for a 
     long time. I think it was a bad idea when President Franklin 
     Roosevelt tried to pack the court.

  Well, unfortunately, it seems the Democratic leader and Democratic 
Senators are repeating the partisan mistakes of their predecessors in 
threatening the Court and threatening to pack the Court, which would be 
truly a radical and bad idea, as Justice Ginsburg explained.
  Accordingly, what I am going to do is propose modifying the 
Democratic leader's resolution to delete his call that we leave this 
vacancy open, that we leave the Court with just eight Justices, which 
opens up the possibility of a 4-to-4 tie, not able to resolve a 
contested election, and leaving this country for weeks and months in 
chaos if we have a contested election in November. Instead, let's 
replace in the resolution the quote from Justice Ginsburg that packing 
the Court is a bad idea and have the Senate agree that packing the 
Court is a bad idea.
  I am confident that, when I ask the Democratic leader, he is going to 
reject this because we are, sadly, seeing one side of the aisle embrace 
more and more dangerous and radical proposals, including trying to use 
brute political force to politicize the Court. That is neither 
consistent with the Constitution nor is it consistent with two 
centuries of this body's precedent.
  Accordingly, I ask that the Senator modify his request and, instead, 
take up my resolution at the desk. I further ask that the resolution be 
agreed to, the preamble be agreed to, and the motions to reconsider be 
considered made and laid upon the table with no intervening action or 
debate.
  The PRESIDING OFFICER. Does the Senator so modify his request?
  Mr. SCHUMER. Madam President, reserving the right to object, I 
believe Justice Ginsburg would have easily seen through the legal 
sophistry of the argument of the junior Senator from Texas. To turn 
Justice Ginsburg's dying words against her is so, so beneath the 
dignity of this body.
  I do not modify.
  The PRESIDING OFFICER. Is there objection to the original request?
  Mr. CRUZ. I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Iowa.