[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 2171-2173]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. BROWN. Madam President, the sudden passing and tragic death of 
U.S. Supreme Court Justice Scalia leaves us with a vacancy to fill on 
our country's highest Court, but it shouldn't lead us to a yearlong 
political standoff.
  Article II, section 2, of the Constitution is clear: The President 
shall nominate a Supreme Court Justice with the advice and consent of 
the Senate. It doesn't say ``may.'' It doesn't say ``maybe.'' It isn't 
followed by a clause which says that Senators don't have to do their 
jobs in an election year. It doesn't say anything about that. And that 
is the tradition of our country, that Senators--we run for office 
willingly, enthusiastically. We work hard

[[Page 2172]]

to get here. We take an oath of office. Every couple of weeks, we get a 
paycheck. And some are saying we simply shouldn't do our job and move 
forward with this nomination.
  Complete refusal to consider any nominee from this President is 
outrageous. It is indefensible, and it is unprecedented in spite of 
what some of my colleagues would like to say. Don't take my word for 
it. Senator Grassley, the Republican chairman of the Judiciary 
Committee, said as recently as 2008 that ``the reality is that the 
Senate has never stopped confirming judicial nominees during the last 
few months of a President's term.'' The country didn't elect Barack 
Obama--whether you voted for him or against him--for a 3-year term or 
three-fifths of a term; the country elected him for a 4-year term.
  Since the Civil War, no Supreme Court vacancy has been left open for 
a year. For the past century, the Senate has taken action on every 
single pending Supreme Court nominee.
  I talk to people in Ohio all the time, Republicans and Democrats 
alike. I talked to a Republican today who supports Senator Rubio for 
President and probably votes for Republicans for President in every 
election. He said: I just can't believe what Mitch McConnell did. I 
can't believe my party--the people I vote for in Senate races and House 
races--would possibly say that we are not going to have a hearing on 
this nominee.
  We are not even going to meet with this nominee. I mean, a number of 
Senate Republicans said: We won't even shake hands. We aren't even 
willing to meet with a Supreme Court nominee whom the President of the 
United States, under the Constitution, shall appoint, whom the 
President of the United States submits to the U.S. Senate.
  Let's look at what has happened in the past. In 1988, which was 
President Reagan's final year in office, a Democratic majority 
unanimously confirmed Justice Anthony Kennedy. That was in 1988. Again, 
President Reagan submitted his name in 1988. He was confirmed by a 
Democratic Senate. In fact, the Senate has been confirming Justices in 
Presidential elections since our Nation's founding. Two of President 
Washington's nominees were confirmed during his last years in office. 
Since 1916, every pending Supreme Court nominee has either received a 
hearing or been confirmed quickly before a hearing even took place. 
Think about that. A pending Supreme Court nominee has never been denied 
a hearing in the history of the United States. The only exception is 
the nominees who were confirmed without a hearing. Yet, within hours--I 
think only minutes, actually--within less than an hour, I believe, of 
the announcement of Justice Scalia's passing, the Republican leader of 
the Senate, the majority leader of the Senate pretty much said: We are 
not going to do our job. We are not even going to have a hearing on 
whomever the President of the United States nominates. We are not only 
not going to have a hearing, he then said later, I am not even going to 
meet with that person. Imagine that.
  So that nomination--whomever President Obama nominates--that vacancy 
will be more than a year for sure if the Senate does nothing on this 
confirmation. Again, the last time there was a vacancy for as long as 1 
year was during the Civil War. It was 150 years ago. That is because 
there was a Civil War and the Congress wasn't very functional in those 
days. Members were leaving the Court, leaving the Senate and House 
after secession in 1861 and all the other things that happened.
  We have nearly a year left in President Obama's term, about a quarter 
of the term the American people elected him to serve. That is plenty of 
time for the Senate to carefully consider and review a nominee.
  President Obama--and just to make it clear, he was not just elected, 
he was elected decisively. I believe he is only the second Democrat in 
American history--surely the second Democrat since the Civil War--he is 
only the second Democrat since the Civil War to at least twice win a 
majority of the popular vote. Only President Obama, who got more than 
50 percent of the vote twice, and President Roosevelt, who got more 
than 50 percent of the vote, I believe, four times--they were the only 
Democrats in 150 years who got a majority of the vote twice. President 
Clinton was elected twice with a plurality. President Wilson was 
elected twice with a plurality. President Obama and President Roosevelt 
were decisive wins. This wasn't an accidental win. This wasn't a 
candidate put into office by a decision of the U.S. Supreme Court. This 
was a legitimate election and a decisive win.
  Let's look at some of those nominees. The longest nomination on 
record was Justice Brandeis, who I believe was the first Jewish 
American to be appointed to the Supreme Court. His took 125 days. 
President Obama has more than 300 days left in his term.
  If we fail to confirm a nominee, if Senate Republicans fail to do 
their job--they were elected. They were sworn in. They get paid. All of 
us do. We are just asking them to do their job. But if Senate 
Republicans don't do their job, two Supreme Court terms will pass 
before a new Justice is appointed.
  Yesterday I spoke with Professor Peter Shane, a constitutional law 
professor at Ohio State's Moritz College of Law in Columbus. Professor 
Shane said that a vacancy of this unprecedented length on the Supreme 
Court ``will compromise its ability to perform its proper 
constitutional function'' and it will create ``prolonged uncertainty.''
  I have heard so many Republicans in the Senate say that we do all 
these things and create uncertainty--uncertainty in the economy, 
uncertainty in regulation, uncertainty in the consumer bureau, 
whatever. This is the worst kind of uncertainty. It is self-afflicted, 
and it affects entirely one-third of the government, one of the three 
branches of government. Without a full bench, justice could be further 
delayed for Americans who fought for years to have their cases heard. 
Split decisions--4 to 4 would leave legal questions unanswered and 
leave Americans in different parts of the country subject to different 
laws. How do we prevent that? Do your job, I say to my colleagues in 
the Senate.
  In the past, Senator McConnell himself has agreed with a normal, 
deliberative approach for Supreme Court nominees. He said in 2005: 
``Our job is to react to that nomination in a respectful and dignified 
way, and at the end of the process, to give that person an up-or-down 
vote as all nominees who have majority support have gotten throughout 
the history of the country.''
  That is what he said a decade ago.
  Now he is saying the Senate will not even do our jobs. Again, we run 
for these offices, we get sworn in to these offices when we win 
elections, we get paid every two weeks; we should be doing our job. I 
am not saying every Republican has to vote for the President's nominee. 
What we are saying is meet with them. The President will do the 
nomination. We should begin hearings. We should meet with these 
nominees individually. For every Supreme Court nomination since I have 
been in the Senate, I have had an hour-long meeting with each nominee, 
and we then make our decisions based on that. We have not said we are 
not going to do our work, we are not going to do our jobs. How would 
that make sense?
  The only difference now is that we have a different President. Time 
and again the Democrats in the Senate have given Republican Supreme 
Court nominees a fair hearing and the up-or-down vote they deserve. 
During the 7 years the Vice President chaired the Judiciary Committee, 
when he was a Senator here, he did his job. He oversaw the confirmation 
of three Justices who were nominated by Republican Presidents.
  In the case of Clarence Thomas, he even allowed Justice Thomas to 
have an up-or-down vote on the Senate floor, even though the committee 
failed to report his nomination with a favorable recommendation. So 
what does that mean? That means that when Clarence Thomas was in front 
of the Judiciary Committee, a majority of members said no, they didn't 
want to confirm him, yet they still moved his nomination to the floor. 
They didn't filibuster.

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They didn't require 60 votes. They just said: A majority vote wins. 
Thomas won. Even though Democratic leadership voted against him, Thomas 
won 52-48. Nobody blocked him, which they could have easily done. And 
the Senate did its job, the same thing we are asking the Senate to do 
today.
  Both Justice Thomas and Justice Alito were confirmed by the Senate 
with fewer than 60 votes. That means, again, they could have blocked 
them with a filibuster. They didn't. They allowed both of them to come 
forward. Even though they had lots of opposition, they still allowed an 
up-or-down vote. Yet this time Senate Republicans are refusing to hold 
hearings and are, in many cases, even refusing to meet with the 
nominee.
  Do your job. You were sworn in. You ran for these offices and then 
you were sworn in. Do your job. You get paid to do these jobs. Show up 
for work and do your job.
  Can we imagine how Republicans would have reacted if Democrats had 
shown Ronald Reagan this same disrespect when we considered Justice 
Kennedy's nomination? I wasn't here then, but we certainly understand 
the history of the story.
  The consistent attempt to delegitimize a democratically elected 
President is politics at its worst. In 2013, the Republicans didn't 
like the results of the 2012 election, so they shut down the 
government. Three years later they still don't like the results of the 
2012 election, so they are saying: Well, forget the 2012 election, this 
is all about the 2016 election.
  What it is really about is that the President of the United States 
was elected in 2012 with the majority of the vote and in an electoral 
college landslide. He was elected for a 4-year term--not a 3-year and 
1-month term, not three-fifths of a term--a 4-year term. American 
history, in spite of what my colleagues like to say with their 
revisionist history--in spite of what they like to say about 
revisionist history, the fact is we have done this in the fourth year 
or the eighth year of many Presidents. Now they are trying to--as they 
shut down the government in response to the 2012 election of which they 
didn't like the outcome, now they are trying to shut down the Supreme 
Court process with a year left in this President's term. You don't shut 
the whole system down when you don't get your way. It is a dangerous 
precedent that undermines our democracy.
  Our friends on the other side of the aisle justified this saying: We 
need to let the people make the choice. Well, they did. They made their 
choice in 2012 by selecting a President for a 4-year term. This is the 
fourth year of his term. There is no reason this President shouldn't 
have the obligation and the right to nominate a candidate and send a 
name to the Senate, and there is no reason that Senators shouldn't do 
their jobs--have hearings, meet with the nominee, bring him to the 
floor for a vote with a 50-vote threshold--a majority vote--and see 
what happens. They may vote no. If they vote no, that is a legitimate 
exercise, but if they are not willing to go through the process and see 
what might happen--see what the public judges as the right decision in 
whether to confirm or not--they are not doing their jobs.
  It may be asking too much when I have seen the partisanship and the 
head-in-the-sand attitudes and the fight-this-president-at-all-costs 
views of so many on the other side, but I expect this Senate to put 
politics aside and give a fair hearing and an up-or-down vote to any 
qualified nominee because that is our job.
  Simply put, we need to do our job.
  Madam President, I yield the floor.
  The PRESIDING OFFICER (Mrs. Ernst). The Senator from Nebraska.

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