[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 2348-2350]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. BROWN. Madam President, in the last 2 minutes I would like to say 
a few more words about the Supreme Court vacancy.
  Four former U.S. attorneys from Ohio, Washington State, California, 
and Virginia published an op-ed that went around the country urging the 
Senate to promptly consider a Supreme Court nominee to replace Justice 
Scalia.
  I ask unanimous consent to have printed in the Record the writings of 
the former U.S. attorneys.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Steve Dettelbach, Jenny Durkan, Melinda Haag and Tim Heaphy 
     are Democratic former U.S. attorneys for, respectively, 
     Northern Ohio, Western Washington, Northern California and 
     Western Virginia. As former U.S. attorneys in diverse 
     districts that are home to more than 20 million Americans, we 
     urge that the president promptly nominate, and the Senate 
     promptly consider, a Supreme Court nominee to replace Justice 
     Antonin Scalia. Both the plain language of the Constitution 
     and plain truths regarding public safety and national 
     security demand that result.
       For federal prosecutors, agents and criminal 
     investigations, a year is a lifetime. We have seen real 
     threats, whether it is the heroin epidemic or the threat of 
     ISIS recruitment, facing the people in our communities each 
     day.
       While law enforcement stands ready to protect the public 
     from those threats, they need to know the rules of the road. 
     Uncertainty about those rules impedes their efforts. Just as 
     with the economy, uncertainty

[[Page 2349]]

     prevents good agents and prosecutors from deciding on 
     investigative strategies and tactics, and making important 
     charging decisions. The Supreme Court is the ultimate arbiter 
     of the hardest and most important questions facing law 
     enforcement and our nation.
       Even as we write today, unsettled legal questions regarding 
     search and seizure, digital privacy and federal sentencing 
     are either pending before the Supreme Court or headed there. 
     It is unfair and unsafe to expect good federal agents, police 
     and prosecutors to spend more than a year guessing whether 
     their actions will hold up in court. And it is just as unfair 
     to expect citizens whose rights and liberties are at stake to 
     wait for answers while their homes, emails, cell phones, 
     records and activities are investigated. Equally important, 
     as lawyers and former public officials committed to the 
     Constitution and the rule of law, it is incredible to us that 
     anyone who claims fidelity to those ideas can argue that 
     either the president or the Senate should not fulfill their 
     duties. And we should be clear on what those duties are. 
     Announcing ahead of time that the Senate will reject any 
     nominee, or refusing to hold fair hearings, does not fulfill 
     the Senate's duty to provide ``advice and consent'' on court 
     nominees. The ``advice'' called for in the Constitution does 
     not include, ``Just forget it, Mr. President.''
       It is ironic that the arguments being made by those urging 
     a year-plus delay are precisely the types of arguments that 
     Scalia abhorred. They are based on politics and some vague 
     notions of Senate ``interpretations'' of the Constitution. As 
     U.S. attorneys we were constantly assessing the strength of 
     constitutional and other legal arguments. And there was no 
     more demanding jurist than Scalia when it came to supporting 
     those arguments with written law.
       One argument is based on the ``Thurmond rule,'' named for 
     the former senator from South Carolina, which calls for no 
     confirmations in the final months of a president's term. But 
     this ``rule'' has never been applied to the Supreme Court and 
     it finds no home in the text of the Constitution. We would 
     all have bought tickets to see Scalia question a lawyer who 
     dared to raise an argument like that. Few things in the 
     Constitution seem as unambiguous as term length. The 
     president is elected for four years under Article II. There 
     is no clause diminishing the president's duties in the last 
     year, and as even Jeb Bush acknowledged, such notions are 
     dangerous.
       Should the president stop fighting ISIS in his last year? 
     Should senators facing an election year not be allowed to 
     vote on judicial nominees so that the ``people can decide?'' 
     Certainly not. The people already did decide what would 
     happen from January 2013 to January 2017. They elected 
     President Obama. In both our communities and court system, we 
     don't have more than a year to blithely waste for political 
     reasons. The safety concerns and dangers are pressing, and 
     our leaders in the White House and the Senate do not have 
     built-in vacation time on our dime.

  Mr. BROWN. I close just begging, urging, imploring, and beseeching my 
colleagues on the Republican side to move forward on the Supreme Court 
nominee.
  We have not had a Supreme Court vacancy for as long as a year since 
the Civil War because we were at war in the 1860s. The average 
nomination process for confirming a Supreme Court nominee when there 
are 8 members of the Supreme Court is only about 6 weeks. The longest, 
Justice Thomas, took 99 days. The President of the United States is 
elected for 4 years--not a 3-year term. A 4-year term has 300-plus days 
in the term.
  This Senator is disappointed--I will leave it at that--to hear that 
my colleagues have said there will not be hearings. Then they said that 
not only will there not be hearings for the President's nomination, 
they will not even meet with a nominee. This Senator finds it rather 
shameful for an institution with this kind of heritage and this kind of 
reputation that we don't do better than that. I urge my colleagues to 
do our jobs, do what we were elected to do, what we were sworn in to 
do, and do what we are paid to do to bring this nominee--vote against 
them if you like but bring up this nominee for real Senate 
consideration.
  I yield the floor, and I thank Senator Grassley for allowing me more 
time.
  The ACTING PRESIDENT pro tempore. The Senator from Iowa.
  Mr. GRASSLEY. Well, Madam President, it is another day and another 
tantrum from the minority leader, but it doesn't matter how much the 
minority leader jumps up and down or how much the minority leader 
stomps his feet, we aren't going to let liberals get away with denying 
the American people an opportunity to be heard. Letting the American 
people decide this question is a reasonable approach, it is a fair 
approach, and it is the historical approach. It is the approach the 
other side advocated when the shoe was on the other foot, and it is 
what the American people deserve.
  They deserve an opportunity and responsibility that we do it right 
instead of rushing to judgment. Voters deserve the right to be heard. 
The American people want a reasonable justice, a person who will make 
the right decisions.
  As the American people continue voting during the Presidential 
election, they face a choice: Do they want just another Justice who 
will look to her heart and apply her own ethics and perspective when 
deciding important constitutional questions that impact every American 
or do they want a Justice who, like Justice Scalia, adheres to the 
Constitution and the rule of law and decides cases based on wherever 
the text takes him or her. We can't overstate how critical it is for 
the American people to understand what is at stake in this debate.
  Today take a little bit of time to discuss the impact that these two 
different visions would have on everyday Americans. Many leading Court 
observers believe that adding yet another liberal Justice to the Court 
whose decisions are unmoored from the constitutional text would lead to 
major changes in the Court's jurisprudence. As a recent New York Times 
article put it, adding another liberal to the Supreme Court ``would be 
the most consequential ideological shift on the Court . . . creating a 
liberal majority that would almost certainly reshape American law and 
American life.''
  So it will impact all of us. According to the same article, a host of 
Supreme Court precedents on free speech, freedom of religion, the right 
to keep and bear arms, the death penalty, and abortion would be 
overturned. The article speculates that ``abortion rights would become 
more secure, and gun rights less so. . . . First Amendment arguments in 
cases on campaign finance, public unions, and commercial speech would 
meet a more skeptical reception.''
  In that same article, one law school dean noted that with another 
liberal on the Court, ``the judicial debate over the fundamental 
possibility of ObamaCare would likely draw to an end.'' So let's 
consider just a few of the Supreme Court precedents that would likely 
be overturned with another liberal Justice on the Court.
  First and foremost, it is our Second Amendment rights that would fall 
squarely within the liberals' sights. The Heller decision, authored by 
Justice Scalia, recognized, based on the intent of the Framers, that 
the Second Amendment guarantees an individual constitutional right to 
gun ownership.
  Again, as one law professor noted in the New York Times, with another 
liberal in the Court, ``The five would narrow Heller to the point of 
irrelevancy.'' Another said: ``If we got a fifth liberal on the court, 
the pendulum would swing pretty quickly on gun control. . . . I expect 
that we'd see a major shift in the kind of gun control laws that get 
approved by the court.''
  In other words, Heller and the individual constitutional rights it 
guarantees would be turned into a relic. It would be an ornament 
without any practical limiting effect on the government's infringement 
upon the constitutional right of an individual to have gun ownership. 
Once this happens, all bets are off on the right to keep and bear arms.
  Next, the First Amendment right of the American people to make their 
voices heard would be drastically curtailed if the Court overturns 
Citizens United. In fact, as a University of Chicago Law School 
professor said in the New York Times, ``Citizens United is on every 
liberal's list of opinions that ought to go.''
  Freedom of religion protections under the First Amendment wouldn't be 
far behind. Another liberal Justice could allow the government to force 
Americans to comply with laws that violate their deeply held religious 
views. For example, a new Justice could provide the fifth vote to 
overturn the Hobby Lobby decision, which recognized the right of the 
owners of a

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closely held corporation to resist laws on religious grounds, such as 
ObamaCare's contraception mandate.
  Of course, we all know free speech protections are being eroded and 
diluted in this country. On college campuses across the country, speech 
isn't being protected because of the speaker's viewpoint. Rather than 
debate openly with opponents as Justice Scalia did, too many people 
today want to shut down debate and muzzle anybody who disagrees with 
them.
  What other rights are at stake in this election? Incredibly important 
precedents under the First Amendment's establishment clause would be at 
risk. Of course, I am talking about Supreme Court cases allowing prayer 
at townhall meetings or permitting low-income parents to receive public 
school vouchers to defray the cost of the child's private school, 
including religious schools. Of course, while yet another liberal 
Justice could read narrowly the First and Second Amendments that are in 
the Constitution, he or she could read broadly those rights that are 
not in the Constitution at all.
  If yet another liberal is nominated to the Court, even reasonable 
restrictions on abortion enacted into law through the democratic 
process would be swept away. Just a few years ago the Court upheld the 
ban on partial birth abortion by a 5-to-4 vote in the case of Carhart. 
Partial birth abortion is a horrific practice that crushes an unborn 
baby's skull, killing it while its head is still in the womb. It is one 
very small step short of infanticide. If the American people elect a 
liberal during this Presidential election, and that President nominates 
another liberal to replace Justice Scalia, we can all expect a 
constitutional right to abortion on demand without limitation. In the 
words of one law professor, ``At-risk precedents run from campaign 
finance to commerce, from race to religion, and they include some 
signature Scalia projects, such as the Second Amendment. . . . Some 
would go quickly, like Citizens United, and some would go slower . . . 
but they'll go.''
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  Mr. GRASSLEY. I ask unanimous consent for 4 more minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. GRASSLEY. That leads me to a broader point. There is more at 
stake than the results of any particular case as important as those 
cases are. The American people need to consider whether they want their 
next Justice to decide cases based on the text of the Constitution as 
it was understood at the time it was adopted or whether Justices are 
free to update the Constitution according to their own moral and 
political philosophies. Should Justices apply accepted legal principles 
through sound reasoning of new facts or should they do legal back flips 
to reach their desired public policy goals?
  Of course, this second approach is not law. Instead, it is what 
Justice Scalia called ``legalistic argle-bargle'' and ``jiggery-
pokery.'' Justice Scalia knew the rule of law was a law of rules. The 
rule of law is not a law of whatever is in the Justice's heart. When a 
Justice believes, as President Obama does, that any time he views the 
Constitution as unclear, he can apply his own life experience and 
empathy for his or her favorite causes. The Justice has a clear 
incentive to think the Constitution is unclear, but a Justice isn't 
entitled to read those views into the Constitution and impose them on 
the American people. Our Constitution sets up a Republic, not a 
government by judiciary.
  Unless the Constitution specifically prohibits the democratic process 
from reflecting the will of the people, the decisions are made by 
elected individuals who are accountable to the voters. The Supreme 
Court plays a very important role in keeping the branches of the 
Federal Government within constitutional powers, keeping the Federal 
and State governments within their constitutional sphere, and it 
ensures the government complies with the Bill of Rights. That is the 
basis for its legitimacy.
  When the Court reads the Constitution in ways that reflect the 
Justice's personal policy views rather than the text, it does not act 
legitimately. Instead, it denies the people the legal right to govern 
themselves. Justice Scalia understood this better than anyone. The more 
the Court reaches out and grabs power it is not entitled to hold, the 
more it legislates from the bench, the more decisions it robs from the 
American people.
  As a direct result, step-by-step and inch-by-inch, liberty is lost. 
As John Adams observed, ``Liberty, once lost, is lost forever.''
  Since the days of the Warren Court, this is what liberal Justices 
have done. Under the guise of constitutional interpretation, they have 
imposed liberalism on the American people. They have done it on issues 
and in ways they couldn't achieve through the ballot box.
  This is the decision facing the American people during this 
Presidential election. If the American people elect a liberal as their 
next President, and he or she nominates a like-minded judge to replace 
Justice Scalia, liberalism will be imposed on the American people to a 
degree this country has never before witnessed. I hope anyone who cares 
about these important issues will take very serious note.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Nebraska.

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