[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 2102-2103]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    OUR ``WE THE PEOPLE'' DEMOCRACY

  Mr. MERKLEY. Mr. President, today I rise to address a topic under the 
broad notion of the first three words of our Constitution: ``We the 
People.'' These are the most important three words because they set out 
the theory, the strategy for our entire Constitution and what it is all 
about, which is to ensure that we do not have government of, by, and 
for the most affluent in our society; or government of, by, and for the 
titans of commerce and industry; but instead a government of, by, and 
for the people, the citizens. It is within the framework of this 
Constitution that we find many elements designed to preserve this ``we 
the people'' purpose.
  In recent years, in recent decades, we have had major attacks on the 
theory of our Constitution, ``we the people.'' We had the Buckley v. 
Valeo Supreme Court decision 40 years ago that said it is all right for 
the most affluent citizens in our society to drown out the people in 
the election process. We had Citizens United, which said the 
Constitution doesn't say ``we the people''; it says ``we the titans of 
commerce and industry; we the corporations.'' So the Supreme Court has 
made several decisions that have taken us far afield, and we see the 
results of this. We see the impact of policies crafted by a legislature 
elected with fabulous sums of money from the people at the height of 
our society, the height of power and influence, of wealth and 
connections.
  Somehow, we have to reclaim our Constitution. In fact, this 
understanding is something that is way off base, is the foundation of 
the frustration we see across our Nation. We see it reflected in the 
Presidential campaigns this year on the Democratic side and on the 
Republican side. People know that something is wrong when over the last 
four decades virtually all additional income in our economy has gone to 
the top 10 percent. People understand that the middle class is being 
squeezed and crushed. People are starting to see tent cities pop up in 
cities across our Nation because policies made here are no longer 
crafted for ``we the people'' but instead for ``we the titans.''
  Well, I am going to rise repeatedly to address this challenge that is 
at the core of who we are as a nation, the core of our Constitution. 
Our Constitution is being attacked continuously, and we the people must 
fight back to reclaim it.
  The most recent attack has come from colleagues in this body who said 
they don't want to honor the responsibilities that they took on when 
they took the oath of office. One of those responsibilities is to give 
advice and consent on nominations. Recently, we have the majority 
leader who said: I don't even want to talk to a nominee from the 
President, let alone take my responsibilities under the Constitution 
seriously to give advice and consent.
  So I thought it might be useful to go back and think a little bit 
about this advice-and-consent power and how it came to be, what it 
meant, and what it means for us to honor our responsibility today as 
Members of the U.S. Senate.
  In those days in which the Founders were crafting the Constitution, 
they had a couple of different theories about how they might possibly 
create this power, and some said it should go solely to the Executive, 
solely to the President. Others said that is too much power to 
concentrate in single hands, that it should go to the body of a 
legislature, it should go to an assembly.
  Some decades after our Constitution was signed, they had a Federalist 
Paper written by Alexander Hamilton that laid out this discussion. He 
noted--and I am going to quote at some length here--that the argument 
for the Executive is as follows:

       The sole and undivided responsibility of one man will 
     naturally beget a livelier sense of duty and a more exact 
     regard to reputation. He will, on this account, feel himself 
     under stronger obligations, and more interested to 
     investigate with care the qualities requisite to the stations 
     to be filled, and to prefer with impartiality the persons who 
     may have the fairest pretensions to them.

  So that was the argument for the President to exercise these powers.
  In addition, there was discussion of the weaknesses of an assembly, a 
body like the U.S. Senate having that responsibility all to itself. 
Again, I will quote Alexander Hamilton:

       Hence, in every exercise of the power of appointing to 
     offices, by an assembly of men, we must expect to see a full 
     display of all the private and party likings and dislikes, 
     partialities and antipathies, attachments and animosities, 
     which are felt by those who compose the assembly. The choice 
     which may at any time happen to be made under such 
     circumstances, will of course be the result either of a 
     victory gained by one party over the other, or of a 
     compromise between the parties. In either case, the intrinsic 
     merit of the candidate will be too often out of sight.

  So thus the argument for the Executive over the assembly to have 
these appointing powers. But there was a concern, and that was, what if 
the Executive, the President, goes off track? Wouldn't it be useful to 
have a check on nominations when the Executive goes off track? So 
Hamilton explained why this check on the President's nomination power 
was placed into the Constitution.
  Once more I quote:

       To what purpose then require the co-operation of the 
     Senate? I answer, that the necessity of their concurrence 
     would have a powerful, though, in general, a silent 
     operation. It would be an excellent check upon a spirit of 
     favoritism in the President, and would tend greatly to 
     prevent the appointment of unfit characters from State 
     prejudice, from family connection, from personal attachment, 
     or from a view to popularity. In addition to this, it would 
     be an efficacious source of stability in the administration.

  He goes on to note that the body would be expected to approve most 
nominations, except when there are special and strong reasons for the 
refusal.
  So that is our job. That is how it is laid out, that we are to make 
sure the power the President has is not exercised in a way that results 
in unfit characters being appointed. Thus, this mutual system that took 
the strengths of the assembly as a check--that is, of the Senate--and 
the strength of the President in terms of accountability was combined. 
And Hamilton notes: ``It is not easy to conceive a plan better 
calculated than this to promote a judicious choice of men for filling 
the offices of the Union.''

[[Page 2103]]

  So that is where we fit in. That is our role. We are to make sure 
that a nomination--an individual has the preparation, the 
qualifications, the character, if you will, to fill an office 
effectively. Hamilton points out in his conversation that just the fact 
that the Senate will be reviewing the nominations will serve as a check 
for, if you will, off-track nominations, inappropriate nominations.
  During the time I have had a chance to be connected to the Senate--
and that now spans four decades; it was 1976 when I came here as an 
intern for Senator Hatfield--I have seen this body operate as 
envisioned in the Constitution. I saw this body operate as a simple 
majority, with rare exception. The use of the filibuster was not used 
to paralyze, and the power of confirmation--of advice and consent of 
the Constitution--was not used to systematically undermine the 
President because he simply happened to be of a different party. It was 
not used to undermine the judiciary by keeping judicial vacancies open. 
Indeed, when this body starts to operate in that fashion--as it has 
been during the time I have been here as a Senator, seeing across the 
aisle the effort to systematically change the makeup of the core by 
undermining the responsibility to give advice and consent--then we 
deeply polarize and undermine this important institution that is our 
judiciary.
  I must say, even though I have seen for years the effort to really 
harness some gain through the strategy of undermining the ability of 
the President to appoint, I never thought it would come to this.
  Article 2, section 2, declares that ``the President, with the advice 
and consent of the Senate, shall appoint Ambassadors, other public 
Ministers and Consuls, Judges of the supreme Court, and all other 
Officers of the United States.''
  It is a responsibility of the President to nominate. It is a 
responsibility of the Members of this body to give advice and consent 
on that nomination. Yet here we are today with the majority of this 
body saying we do not take seriously our responsibility under the 
Constitution to give advice and consent.
  We have seen the process of really slowing--slow-walking nominations, 
but this is on a different scale of magnitude.
  It is our responsibility to have a committee vet the nominees, our 
responsibility to have a floor debate on the floor, our responsibility 
to have a vote, and that certainly is a way the Senate has operated 
decade after decade, century after century.
  I just have to ask each of my colleagues across the aisle, do you 
find in this beautiful Constitution any phrase that says the President 
shall nominate but only in the first 3 of the 4 years he or she is in 
office? Can you find that in the Constitution? Can you truly raise your 
head and say you are doing your responsibility when you say: I only 
want to exercise my constitutional responsibility of advice and consent 
3 out of every 4 years, and then I will take a year off. I think if you 
read the Constitution you will find that is not what it says, and the 
American people know this. They know the Supreme Court is very 
important to calling the balls and strikes when actions or laws move 
into areas that are out of bounds. That is what the Supreme Court does. 
It makes sure our structure of laws and regulations stay within the 
bounds of the rights and rules of our Constitution.
  This is a critical part of the construction of American democracy. 
The Supreme Court serves as a check on the overreach of the President, 
the overreach of this body, and the overreach of its regulators. It 
cannot do its job if it does not have a full set of members.
  Not since the Civil War has the Supreme Court been left with a 
vacancy for more than a year, and of course the Civil War was a very 
unusual situation. Since the 1980s, every person appointed to the 
Supreme Court has been given a hearing and a vote within 100 days. 
Since 1975, on average, it has taken 2 months to confirm Supreme Court 
nominees.
  Despite what some of my colleagues claim, the President's duty to 
make nominations to the Supreme Court does not disappear during a 
Presidential election year. Our responsibility to do advice and consent 
does not disappear in a Presidential year. Let's look to history. More 
than a dozen Supreme Court Justices have been confirmed in the final 
year of a Presidency. More recently, Justice Kennedy, who is still on 
the bench, was confirmed in the last year of President Reagan's final 
term. That was done by a Senate led by the opposite party. It was a 
Democratically controlled Senate that honored its responsibility to 
give advice and consent.
  The American people spoke overwhelmingly when they reelected 
President Obama in 2012 to a 4-year term. They expect him to fulfill 
his duties for a full 4 years. They expect us to do our duties under 
the Constitution. The current campaign events do not stop the 
responsibilities of the U.S. Senate. For the last 200 years, the Senate 
has carried out its duty to give a fair and timely hearing and a floor 
vote to the President's Supreme Court nominees. Let us not change that 
position today, this week or this year. Let's not only honor the 
tradition, let's honor the constitutional responsibility.
  I note it is not only the Supreme Court we have to worry about. Last 
year the Senate confirmed just 11 Federal judges, the fewest in any 
year since 1960--in the last 56 years. Only one Court of Appeals judge 
was confirmed, the lowest in any given year since 1953. The number of 
judicial emergencies, where there are not enough judges confirmed to do 
the workload, has nearly tripled over the past year, from 12 in January 
2015 to 31 judicial emergencies today.
  The obstruction is not limited simply to the judicial branch. The 
abuse of advice and consent or disregard for the responsibility extends 
to the executive branch. When we elect a President, the President is 
not a President of the party, he or she is the President of a nation. 
Whether you are a Democrat or Republican, the President is our 
President. Systematically using party politics to undermine the 
individual because they were elected from the opposite party diminishes 
the individuals who serve in this body, it diminishes the stature of 
this institution, and it diminishes the function of our Nation so 
carefully crafted in our Constitution.
  Let's ponder the path forward this year. Let's not diminish this 
institution by forsaking our responsibility. Let's not politically 
polarize the Court that is so essential to making sure our laws and 
regulations and attitudes stay within the bounds of the Constitution. 
Let's instead restore this institution. Let's restore the Senate. Let 
it be at least as healthy as it was when we were youngsters serving 
here as interns, coming to DC for the first time or simply reading 
about it in a book back home.
  Let's restore the effectiveness of our judiciary. When we have 
judicial emergencies, we have justice delayed, and justice delayed is 
justice denied, and that does not honor the vision of the role of 
justice in the United States of America.
  So I call on my colleagues to end this obstruction that diminishes 
your service, diminishes this institution, and damages our Nation. In 
short, do your jobs. Work together as 100 Senators for the future of 
our Nation.
  Thank you, Mr. President.
  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.
  Mr. FRANKEN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Toomey). Without objection, it is so 
ordered.
  Mr. FRANKEN. Mr. President, I ask unanimous consent to speak for up 
to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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