[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
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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
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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.