[Congressional Record Volume 168, Number 19 (Monday, January 31, 2022)]
[Senate]
[Pages S401-S402]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Supreme Court Nominations

  Mr. CORNYN. Madam President, last week when the Senate was in recess, 
Justice Stephen Breyer announced he will soon retire from the U.S. 
Supreme Court. I want to first thank Justice Breyer for his service--
more than four decades, including nearly three decades on the Supreme 
Court itself.
  Although I have disagreed with his rulings from time to time, I 
maintain deep respect for Justice Breyer's commitment to the rule of 
law and the integrity of our judicial system.
  Last year, when some of our Democratic colleagues renewed their 
threats to expand the Supreme Court and pack it with partisans, Justice 
Breyer, to his credit, spoke up. He echoed the comments of the late 
Ruth Bader Ginsburg and warned about the potentially dangerous 
consequences of Democrats' Court-packing threats. As I said, I have 
great respect for Justice Breyer's defense of the Court and the rule of 
law and protecting the Court as an institution, especially at a moment 
when sound, principled leadership was needed.
  Once again, I want to thank Justice Breyer for his service and wish 
him a well-deserved retirement.
  All eyes are now on the White House as we await news of President 
Biden's nominee to succeed Justice Breyer. Although this is the 
President's first opportunity to nominate a Supreme Court Justice, he 
is standing at a very familiar fork in the road, outlining two separate 
and distinct paths.
  One of those paths involves convention and virtuous leadership. 
President Biden could select an individual whose stellar credentials 
and experience are matched by a deep respect for the rule of law and 
the Constitution. He could nominate someone who agrees that Supreme 
Court Justices are meant to act as umpires, not as players in the game. 
They are supposed to call balls and strikes, not to help their 
preferred team score runs.
  Of course, there is another path, one that was cleared and paved by 
the radical left. The President could listen to the liberal activists 
who want to select somebody who will deliver partisan wins regardless 
of the facts. He could nominate someone who would attempt to use a 
position on the Supreme Court to rule based on personal policies or 
preferences rather than what the law commands a Justice to do.
  As I have said, President Biden has found himself looking down these 
two diverging paths a number of times. When he first took office, he 
could have worked with Republicans to build on Congress's perfect 
record of bipartisan pandemic relief. With the border crisis, he could 
have endorsed bipartisan efforts to address the virtually uninhibited 
flow of migrants across our southern border during this last year.
  With a 50-50 Senate, he could have embraced the opportunity to work 
across the aisle to make progress on our shared priorities, but at 
every single decision point, the President basically ignored the 
opportunity to build consensus. Even when he supported the 
infrastructure bill, it was only as a last resort after his attempt, 
along with that of Speaker Pelosi, to join the infrastructure bill to 
the Build Back Better bill, which he knew did not have the support that 
it needed, even among Members of his own party.
  The President has repeatedly bowed to the radical left's demands, and 
the results speak for themselves. Last spring, the American people were 
stuck with a nearly $2 trillion bill for unnecessary partisan spending. 
Illegal border crossings remain at historic highs, with more than 2 
million apprehensions since January of last year when he took office.
  Many of our Democratic colleagues abandoned their longstanding 
support for the filibuster or the bipartisan consensus-building 
requirement of our cloture rules and tried to blow up the foundation of 
the Senate in order to clear a path for even more partisan legislation.
  Now we find ourselves 1 year into a Democratic-controlled government 
with a short list of legislative accomplishments.
  Time and time again, President Biden has abandoned bipartisanship and 
tradition in order to appease the progressive base in his political 
party, and the American people are the ones who have suffered the 
consequences.
  Once again, I would hope he would remember his inspiring words at his 
inauguration on January 20, just about a year ago, where he called for 
a healing of the divisions in our country and working together in a 
shared desire to improve the quality of life for Americans and to make 
their place in the world one of leadership and peace.
  The left has already begun its campaign to replace Justice Breyer 
with a judicial activist. In fact, the very fact that Justice Breyer 
decided to retire is an indication that the radical left is successful 
in browbeating a sitting Supreme Court Justice into retiring rather 
than finishing his term of office.
  But clearly these folks on the left don't want him to be succeeded by 
another principled jurist who evaluates cases based on the law and the 
facts. They want a partisan who will deliver sure political wins. Our 
Nation does not need a radical ideologue serving on the highest Court 
in the land.
  We all know that the Supreme Court is a third and coequal branch of 
government. We also know that the role of a judge is far different from 
that of a legislator. Legislators are elected in order to represent 
their constituents and make public policy proposals that hopefully will 
become law which will improve their lot in life and their future.
  The Supreme Court--or any judge, for that matter--is not supposed to 
start with a desired result and work backward from there. The Supreme 
Court is not a substitute for working together to pass legislation in 
the legislative branch with the signoff by the executive branch. The 
Supreme Court--or any court--is not a failsafe that can be utilized to 
deliver particular results that can't be secured through the 
legislative process.
  Judges should not be legislators in black robes. They shouldn't 
advocate for any particular policy outcome or promote a specific 
agenda. Our democracy and the rule of law depends on Justices embracing 
not personal politics, not personal beliefs, and not a preference for a 
particular result in a case. The key to our constitutional Republic is 
a judge that calls balls and strikes, who decides each case based on 
the facts and the law.
  It is important because, every time a judge acts as an activist and 
takes away an issue that should be decided by the political branches, 
it shrinks the capacity of the American people to make their own 
choices at the ballot box when they elect members of the legislature 
and executive branch.
  In fact, that is the reason why our Constitution gives Justices 
lifetime tenure--so they will be insulated from politics, not so they 
can use that tenure in order to impose their political preferences 
without retribution by the voters.
  Conversely, those of us in Congress are precisely elected in 
political elections for policy purposes, and the fact is we either 
listen to our constituents

[[Page S402]]

and are guided by their desires or they hold the power to replace us 
and retire us at the ballot box. That is why our Founders gave courts 
the jurisdiction to apply and interpret the law, not to make the law up 
as they go along.
  We need dedicated public servants who follow the statutes passed by 
Congress and signed by the President into law, and the Constitution 
representing the fundamental law of the land, and we need judges to 
make decisions based on what that law says, not, again, on what their 
preferred outcome may be.
  So as the President approaches these two paths, I hope he will ignore 
the clamor on the left and make a choice that serves in the best 
interest of the American people and send us a nominee who respects the 
law and the limited role of a judge in our political system, because a 
judge is not supposed to substitute his or her opinion for that of the 
elected representatives of the people.
  And surely the Constitution itself is the fundamental law of the 
land. And, as Chief Justice Marshall said in Marbury v. Madison, the 
decisions of the Court interpreting that Constitution are the last 
word.
  But what we need is what Chief Justice Roberts called humility; that 
judges understand their important but limited role under our form of 
government not to supersede the policy judgments of the elected 
officials just because they can because they are the last word. We need 
judges who will demonstrate that sort of humility, who understand that, 
yes, they have a tough and important job to do but that it is within 
certain guardrails and limitations about what that role should be.
  As the President looks down these two divergent paths, I hope he will 
ignore the clamor on the left and make a choice that serves the best 
interest of the American people. And he would do that by choosing a 
mainstream nominee.

  The President promised during his campaign to nominate an African-
American woman to the Supreme Court, making that a historic first. As 
the President weighs his decision, I want to remind him and our Senate 
colleagues that diversity extends far beyond just gender and skin 
color. We need a diversity of education, background, and experience.
  For example, all of the current Justices on the Court but one were 
educated at Ivy League colleges and universities. In fact, when Justice 
Barrett was confirmed, she became the first sitting Justice to attend a 
law school other than Harvard or Yale. It is true that the current 
Justices largely hail from coastal metropolitan areas, and one-third of 
the sitting Justices have previously served on the DC Circuit Court of 
Appeals.
  So I agree that diversity on the highest Court in the land is a 
valuable asset, and I encourage the President to consider nominees that 
can bring unique experiences, education, and viewpoints of all types to 
the Supreme Court.
  Whoever the President chooses will be evaluated based on their 
qualifications, experience, and ability to separate politics from the 
rule of law. That is the job of the Senate Judiciary Committee, on 
which I am proud to serve.
  I presume we would treat any nominee--regardless of ethnicity, race, 
or gender--exactly the same in extending to them a respectful and 
dignified process. Certainly, no nominee is going to get points, so to 
speak, toward their confirmation vote because they are of a particular 
race, ethnicity, or gender. Each nominee will be thoroughly vetted and 
questioned, just as prior nominees have been.
  But unlike some of the mudslinging that we saw during the 
confirmation of Justice Kavanaugh, I expect this process to be fair and 
dignified. We must be careful, thorough, and comprehensive because the 
American people and the institution of the Supreme Court deserve 
nothing less.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mrs. GILLIBRAND. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.