[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 2176-2177]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Ms. MIKULSKI. Mr. President, I rise to speak in morning business on 
an issue before the American people, and that is the Supreme Court 
vacancy.
  I rise today to express my very deep, deep disappointment in my 
Republican colleagues for vowing to block President Obama's 
nomination--vowing to block President Obama's nominee for filling the 
vacancy on the Supreme Court.
  Each and every Senator serving in this Chamber was elected by the 
American people, and we took an oath to uphold the Constitution. In 
this matter, the Constitution is very clear. Article II, section 2 says 
the President ``shall nominate, and by and with the Advice and Consent 
of the Senate, shall appoint . . . Judges of the supreme Court.''
  It doesn't say the President only has an hour and a half left. It 
doesn't give a time limit to the President. If you are a President and 
you have a 4-year term, you have the authority and duty to exercise 
your obligations under the Constitution for a full 4 years, and the 
Senate has a duty to provide advice and consent. There are no waivers 
for election years. I urge my colleagues: Do your job. Follow the 
Constitution and live up to the Constitution. The Constitution doesn't 
say: In an election year, delay, delay, delay. The word ``delay'' 
doesn't even appear in the Constitution, in the hope that one day you 
will get your way.
  Republicans have said that the Senate must wait until the people have 
spoken by electing a new President in November. The American people 
have spoken. They elected President Obama in 2008, and they reelected 
him in 2012. Barack Obama is our President from now until noon on 
January 20, 2017. If the Founders wanted a 3-year term for the 
President, they would have written that in the Constitution, but they 
mandated 4 complete years.
  Now the other party wants to deny the President the legitimacy and 
authority of his office. Even George Washington had his nominee 
considered during a Presidential election year and had three of his 
candidates confirmed. What was good enough for the first Congress under 
George Washington should be good enough for this Congress now under 
President Obama.
  President Obama and I will both be closing our offices in January of 
2017, but that doesn't mean we are done working for the American people 
today. There is a lot of work to be done. President Obama has the 
constitutional duty to submit a nomination in order to fill the vacancy 
left with Justice Scalia's passing. This duty is not suspended in an 
election year. The Constitution is clear about the President's 
authority. The President must fulfill his duty, and we must do our job. 
The issue is not about Executive orders or checking Executive powers or 
interpreting law books; it is about following the Constitution.
  I say to the Republicans on the other side of the aisle: Please do 
your job. Your constituents elected you to this position to follow the 
Constitution. If you don't like the nominee the President has selected, 
vote no, but at least follow the process. After the President selects 
his nominee, we then go through a courtesy process where the nominee 
calls upon each Senator. Then there is a hearing--and maybe there are 
several days of hearings--and then there is a vote.
  I am calling on the Senate to follow the process that was mandated by 
the Constitution and mandated by our traditions. After the President 
nominates someone, let's meet with the nominee. Let's hold the hearings 
and follow the process, and then let's bring it to a vote. Over the 
last 40 years, the average time it has taken for the Senate to act has 
been only 67 days from nomination to confirmation, so to say we don't 
have enough time just doesn't work. We have 10 months, or 330 days, 
left in this President's administration to do this job.
  Some of my colleagues say there is precedent for this obstructionism. 
Chairman Grassley, the chair of the Judiciary Committee, cited four 
times in our history where a President did not nominate someone to fill 
a vacancy during an election year. Well, those numbers are right, but 
guess what. The vacancy occurred after the Senate had adjourned for the 
year. None of those Presidents could have nominated a candidate because 
the Senate wasn't in session.
  For the past 100 years, every Supreme Court nominee has been acted 
upon. Even if they got a disapproval vote in the committee, they still 
got a vote in the Senate.
  In 1987, Robert Bork was voted down in the committee, but he still 
got a vote on the floor where he was voted down.
  In 1991, Clarence Thomas, one of the most contentious and 
controversial Supreme Court nominations that I ever participated in, 
was voted on by the committee without a recommendation. He got a vote 
on the floor and was approved 52 to 48.
  Each of these candidates had their day to be evaluated. Each Senator 
had the ability to apply their advice and consent or, in some cases, 
nonconsent. I didn't always vote yes on the nominee, but I certainly 
supported the process that we have here. We have never denied a sitting 
President his duty to provide a nominee. This is of utmost importance 
to our Nation. It really is.
  The Supreme Court is unique. It is the highest Court of the land with 
real and lasting impacts on American lives. To obstruct a Supreme Court 
nominee for political reasons would be absolutely unprecedented. Until 
this vacancy is filled, the Supreme Court is left with eight members 
with the potential for tie votes. If there is a tie vote in a decision, 
the ruling of the lower court remains as if the Supreme Court never 
heard the case. In some cases, that leaves disagreement among courts, 
leaving our laws at odds with each other.
  If this vacancy lasts until the next President, the Supreme Court 
could be left without eight members for two terms on the Court. Some of 
the cases with the most impact on our history have been decided in 5-
to-4 votes. That brings up some cases that are of particular concern to 
me.
  What if there were a tied decision in a case and we were left stuck 
in a gridlock? The Senate knows that I am very involved with equal pay 
for equal work. There was the famous Lilly Ledbetter case--Lilly 
Ledbetter v. Goodyear Tire and Rubber Company. It was decided by a 5-
to-4 vote. She faced injustice not only at her job, but also in the 
courts. At the urging of Justice Ginsburg, the Senate provided a 
legislative remedy to correct that injustice. If we had a tie, we might 
not have ever been able to resolve that issue both through the Court 
and through the Senate. This is what democracy is supposed to be.
  There was another amazing case, which was Bush v. Gore. Everyone 
remembers the election in 2000 when we had the hanging chads in Florida 
and we really weren't sure who won the election--Al Gore or George 
Bush. This is America, so banks stayed open, there

[[Page 2177]]

were no tanks in the street, school children were able to go about 
learning what America was all about and get ready for the new century. 
We were moving ahead because the process moved through the courts.
  The Bush v. Gore case was decided with a 5-to-4 vote. Can you imagine 
if we had a tied Court now? We would have a constitutional crisis, and 
we would have a crisis over who was the legitimate President of the 
United States. We can't have that happen again.
  When the voters make their decisions in November on who they want to 
have as the next President, I hope it is clear and decisive and we 
don't end up before the Supreme Court, but surely we need to have a 
Court that is not going to end in a tie and that we have done our job 
to make sure that there are nine--N-I-N-E--on the Supreme Court.
  First of all, follow the Constitution. It is in the best interest of 
our country. Do your job so we can say to the world: We are a Nation of 
laws. We encourage people all over the world that are emerging from 
authoritarian regimes or chaotic political situations to write a 
Constitution and live by it. Well, we wrote a Constitution, so let's 
live by it. We need to follow what we say we were elected to do and 
that we swore an oath to do.
  President Obama must do his job. I urge the Republicans to do their 
job. Let's follow and live up to the Constitution. When the President 
makes his nomination, let's open our doors so we can meet with that 
nominee. Let's hold a hearing or multiple hearings, if necessary, and 
then let's hold a vote on the Senate floor. Let's be accountable by the 
deeds of our vote and not simply avoid our responsibility.
  I yield the floor and 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. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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