[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[House]
[Pages 2421-2429]
[From the U.S. Government Publishing Office, www.gpo.gov]




                              {time}  1915
                         SUPREME COURT VACANCY

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 6, 2015, the gentleman from New York (Mr. Jeffries) is 
recognized for 60 minutes as the designee of the minority leader.
  Mr. JEFFRIES. Mr. Speaker, it is an honor and a privilege for me to 
once again stand on the floor of the House of Representatives along 
with my distinguished colleague from Ohio, Representative Joyce Beatty, 
coanchor of this CBC Special Order hour, this hour of power where, for 
the next 60 minutes, we will have an opportunity to speak directly to 
the American people about an issue of grave importance to the integrity 
of our democracy, and that is making sure that the United States Senate 
fulfills their constitutional obligation to advise and consent as it 
relates to considering any Supreme Court nomination that President 
Obama sends up to that body.
  We know that Justice Antonin Scalia has moved on after a long and 
distinguished career. Though I disagree with almost every single 
judicial opinion that he has issued, he served this Nation well.
  Now that he has moved on, the Supreme Court, which is contained in 
Article III of the United States Constitution, has a vacancy. It is the 
obligation of the United States Senate to fill that vacancy by 
considering whatever nominee President Barack Obama sends forward.
  Members of the United States Senate take an oath of office to 
faithfully discharge their responsibilities. When you look at Article 
II, section 2, of the United States Constitution, which gives the 
President the power to nominate someone to fill a vacancy on the 
Supreme Court, it is the Senate that must consider that nominee.
  Since the early part of the 20th century, there have been eight 
different Supreme Court nominees who have been voted on in an election 
year. Six of them actually were confirmed, but all eight of them 
received a hearing.
  So, for the life of me, I can't figure out why Senator Mitch 
McConnell thinks that he can get away with holding a nomination up 
without even the slightest bit of consideration. So we are going to 
explore that here today.
  We will be joined by any number of distinguished Members of the House 
of Representatives and the Congressional Black Caucus, but let me 
proceed by yielding to my good friend and colleague from Ohio (Mrs. 
Beatty), my dynamic coanchor who does such a tremendous job on behalf 
of the people of the great State of Ohio and the city of Columbus.
  Mrs. BEATTY. Thank you so much, Congressman Jeffries. It is certainly 
an honor and a privilege for me to join you this evening as coanchor 
for this Congressional Black Caucus Special Order hour.
  Congressman Jeffries' scholarship and distinguished talents as a 
member of the Judiciary Committee have not gone unnoticed. I thank him 
for leading by example in challenging us to initiate and follow through 
in sending a message on Senate Republicans' refusal to act on the 
Supreme Court vacancy.
  In part, tonight's Congressional Black Caucus Special Order hour, 
Senate Republicans: Do Your Job, does just that.
  As you reflected in your opening statement, Article II, section 2, of 
the Constitution expressly designates that the President has a duty to 
name and the Senate has a responsibility to advise and consent a 
nominee to fill the seat.
  President Obama takes this very seriously. He has stated: ``It's a 
decision to which I devote considerable time, deep reflection, careful 
deliberation, and serious consultation with legal experts, members of 
both political parties, and people across the political spectrum.''
  But Republicans have made a decision to completely refuse 
consideration of anyone that President Obama nominates to the Supreme 
Court. In fact, they have stated that they won't hold a hearing or a 
vote before the full Senate.
  Senate Democrats never acted so recklessly when faced with this 
situation in 1988, when there was a vote to confirm Justice Kennedy. 
There was no talk of doing nothing until after that year's election 
because it was unthinkable then to leave the Court shorthanded for that 
long. And it remains so now.
  The power of the Court, Mr. Speaker, is reflected in the work it 
does. Its decisions often shape the policy as profoundly as any law 
passed by Congress or any action taken by the President of these United 
States.

[[Page 2422]]

  When we look back to our history, especially as African Americans, 
the importance of the decisions handed down by the Supreme Court cannot 
be overstated.
  For example, most of us are familiar with Brown v. Board of Education 
in 1954, which reversed Plessy v. Ferguson and its ``separate but 
equal'' ruling.
  Striking down segregation in our Nation's public schools provided a 
major catalyst for the civil rights movement and made advances in 
desegregating housing, public accommodations, and institutions of 
higher education possible.
  After Brown, the Nation made some great strides towards opening the 
doors of education to all students. Unfortunately, the promise of the 
Brown decision remains unfulfilled in many ways.
  More than 2 million Black students attend schools where 90 percent of 
the student body is made up of minority students. On average, schools 
serving more minority populations have less experienced, lower paid 
teachers who are less likely to be certified.
  A report from the Center for American Progress found that a 10 
percent point increase in students of color at a school is associated 
with a decrease in per-pupil spending of $75.
  In many ways, more than 60 years after Brown v. Board of Education 
school systems in the United States are still separate and unequal. And 
we are just not witnessing educational disparities at the elementary 
and secondary education level. College enrollment is racially 
polarized.
  White students are overrepresented in selective colleges, which have 
more resources to educate and to support them, while African American 
students are overrepresented in less selective institutions.
  Mr. Speaker and Congressman Jeffries, you see where I am going with 
that.
  This is also why the late Justice Scalia's comments during oral 
arguments of the pending United States Supreme Court case, Fisher v. 
University of Texas at Austin, were so disturbing.
  He stated, in part: Maybe the University of Texas ought to have fewer 
African Americans.
  These comments are inaccurate and insulting to me and to African 
Americans. They undervalue the historic achievement that African 
Americans have made.
  Thousands of Black Americans have excelled to the top tier of their 
universities. Many of them you will hear from tonight because they are 
members of the Congressional Black Caucus.
  They are scholars. They are the conscience of the Congress. They 
represent the diversity of America's best universities and of America's 
Historically Black Colleges and Universities.
  Mr. JEFFRIES. I thank the distinguished gentlewoman for her wonderful 
thoughts and observations, and I look forward to our continued 
dialogue.
  It is now my honor and privilege to yield to the gentleman from 
Virginia (Mr. Scott), one of those individuals that Representative 
Beatty mentioned who is really a legal giant amongst us.
  He is someone who has served this institution well. He understands 
the Constitution, the notion of separation of powers, and the 
importance of a fair and equitable justice system.
  Mr. SCOTT of Virginia. I thank the gentleman from New York and the 
gentlewoman from Ohio for organizing tonight's Special Order to call on 
our colleagues in the Senate to do their job and provide their advice 
and consent on the President's upcoming nomination to the United States 
Supreme Court.
  The Constitution is pretty clear on this issue. Article II, Section 
2, doesn't say the President might or the President should. It says the 
President shall nominate, and by and with advice and consent of the 
Senate, appoint judges to the Supreme Court.
  There seems to be some suggestion that, if it is an election year, he 
ought to skip that process and let the next President make the 
appointment. They say there is very little precedence for a President 
nominating somebody in an election year.
  That might be technically correct, but the fact of the matter is that 
there have been virtually no vacancies that have occurred during an 
election year. I think the last one was about almost 50 years. In that 
case, an appointment was made and considered.
  That is the process that ought to take place in this case. The rarity 
of such an event should not preclude the Senate from fulfilling its 
constitutional responsibility. There is precedent for the President 
nominating and the Senate at least considering the nomination during an 
election year.
  Now, Justice Kennedy was confirmed in an election year in 1988. That 
was a 7-month process that began with the appointment of Robert Bork to 
the Supreme Court. His nomination was considered and defeated.
  And then there was the appointment of Douglas Ginsburg. We will just 
say his nomination went up in smoke. And then we had the nomination and 
confirmation of Justice Kennedy.
  In 7 months, from start to finish, another nomination was made and 
collapsed and another nomination made, all within 7 months. We could 
complete that entire process by the first Monday in October, the 
beginning of the Supreme Court session.
  There is no precedence for the President declining to nominate 
somebody and virtually no precedence for the Senate just to ignore a 
nomination that is made.
  The people overwhelmingly reelected President Obama in 2012 to a term 
that does not end until January 20, 2017, and we fully expect the 
President to fulfill his duty to nominate a qualified individual to the 
Supreme Court to fill the current vacancy.
  A failure of the Senate to act this year would be unprecedented. 
There is ample time for that to take place. The longest confirmation 
process for a single nominee has been 125 days.
  On historic average, it takes 25 days to confirm or reject a nominee. 
As of today, the Senate has 216 days until the first Monday in October.
  If the Senate were to refuse to consider any of President Obama's 
nominations--and they have said they want the next President to make 
the appointment--there has been no indication that they will give 
expedited consideration to the next President's nomination. It could be 
well into the next year by the time the new Justice is confirmed and 
sworn in.
  Even on an expedited schedule, the new President would not be able to 
nominate anyone until they are sworn in on January 20. The Senate 
Judiciary Committee would need time to prepare for hearings, which 
could not occur until probably February. And then the full Senate would 
need time to consider the nomination, with the confirmation not likely 
until probably March.

                              {time}  1930

  Now, by March of a term, the term is effectively about over. Most of 
the oral arguments have already taken place and they are into 
decisions. You can't participate in a decision if you skip the oral 
argument.
  So not only would the vacancy occur through the rest of this term, 
almost half of a Supreme Court term, it would be well into the next 
term and, effectively, through most of the next term.
  There is no excuse to leave the Court vacancy open in what then would 
be a historic new precedence. There is no precedence for keeping a 
vacancy open that long.
  We need the justice appointed. The Senate ought to do its job. The 
President has indicated that he will do his job, as mandated by the 
Constitution, and so the Senate ought to just fulfill its 
responsibility under the Constitution and consider an appointment. 
Otherwise, you will have a vacancy not only through the rest of this 
term--and oral arguments have been taking place--you will have the 
vacancy through the rest of this term. You don't need a vacancy through 
the entire rest of the next term.
  There is plenty of time to consider and vote up or down on a 
nomination. And the unprecedented vacancy that would occur if the 
Senate fulfills its threat to stonewall any nomination is just 
unprecedented.
  So I want to thank the gentleman from New York and the gentlewoman

[[Page 2423]]

from Ohio for giving us the opportunity to just say a word about the 
importance of everyone in our democracy fulfilling their constitutional 
responsibilities.
  The President shall appoint, and the Senate shall consider, advise 
and consent, so that we can have a Supreme Court Justice appointed 
before the first Monday in October.
  We have plenty of time to do that. There is no excuse for not doing 
it, and we expect the Senate to do its job.
  Mr. JEFFRIES. Mr. Speaker, I thank the distinguished gentleman from 
Virginia for highlighting several important points, including the fact 
that there is no election year exception in Article II, section 2 of 
the United States Constitution.
  This is all in Mitch McConnell's mind, cooked up in some partisan 
laboratory in order to stop this President from being able to move 
forward and do the business of the American people.
  We shouldn't be surprised, because we know Mitch McConnell stated 
very early on that his objective was to grind everything to a halt here 
in the Capitol to try to prevent President Obama from being re-elected. 
Not my words, his words.
  But here's the thing. President Obama was re-elected in an electoral 
college landslide. And his opponent in that race, Mitt Romney, tried to 
make it, in part, an election that was a referendum on the possibility 
that President Obama would have the opportunity to fill a Supreme Court 
vacancy.
  That issue was laid before the American people by President Obama's 
opponent, and the American people responded, processed all of the 
facts, and decided to re-elect President Obama, send him back to 1600 
Pennsylvania Avenue.
  The American people did their job. The President is prepared to do 
his job. The Senate Republicans need to do their job as well.
  It is now my honor and my privilege to yield to someone who has been 
a stalwart for justice in this institution, a revered Member of the 
House of Representatives, the great whip of House Democrats, and 
someone who has the respect of everyone in the United States Capitol 
and beyond for his service to the House and his service to the country, 
a great friend to the Congressional Black Caucus, and we are so 
thankful that he is present here today.
  I yield to the gentleman from Maryland (Mr. Hoyer), the Democratic 
whip.
  Mr. HOYER. Mr. Speaker, I thank my friend from New York (Mr. 
Jeffries) for his excellent presentation.
  I want to thank Mr. Scott, who, as the gentleman observed, is one of 
the leaders in this Congress on the Constitution and on the law and on 
equal justice.
  I want to thank my friend from Ohio, the gentlewoman from Ohio, for 
her remarks.
  I noticed that the chair of the Congressional Black Caucus, Mr. G. K. 
Butterfield, formerly a judge on the Court in North Carolina, is here.
  Mr. Speaker, I want to first say that I thank the Congressional Black 
Caucus for sponsoring this Special Order.
  I want to tell every Member, and all Americans ought to know, this is 
not an issue related to one group, to one gender, to one race, to one 
nationality. The failure to fill the vacancy on the Supreme Court will 
affect every American. So we rise tonight to ask the Senate to do its 
duty.
  Mr. Speaker, I am pleased to be here on the floor this evening with 
my distinguished colleagues from the Congressional Black Caucus for 
this Special Order.
  The Supreme Court now has a vacancy, as everyone knows, that must be 
filled. The American people deserve a Supreme Court operating at full 
strength.
  Mr. Speaker, I am old enough to have been alive at the time that John 
Kennedy was assassinated. Within hours of his death, we swore in Lyndon 
Johnson as President of the United States because we wanted to make 
sure that there was a continuity of service. As sad and as tragic as 
those hours were, the responsibility of having a President of the 
United States was met within just a few hours.
  Mr. Speaker, when a vacancy occurs in this House--and there are, 
after all, 434 of us left when that happens--the State laws put a time 
limit on the Governors' action to call an election so that that vacancy 
can be filled.
  Why?
  Because the Constitution of those States do not want to have a 
vacancy exist for very long and have their State or their district not 
represented.
  Now, there is not a time limit with respect to the Supreme Court, per 
se. And the reason for that, of course, is the process, as Mr. Scott 
just pointed out, sometimes take a little longer, sometimes takes a 
little shorter.
  But in 7 months, as the gentleman pointed out, they had three 
nominees considered. Two were defeated after debate and a vote, and the 
third was confirmed. The process worked, and it worked in the last year 
of an administration.
  President Obama has a constitutional responsibility to nominate a 
candidate for the Court that will exercise sound judgment, uphold the 
principle that all people are created equal and must be treated equally 
under the laws.
  The Founders of our country very wisely made the number on the 
Supreme Court an odd number, not an even number, because the Founders 
did not want gridlock. Now we are used to gridlock in this Congress. 
But they did not want gridlock on the Court, and so they provided for a 
decision to be made by five members out of nine.
  Now, however, with four and four, they will maybe not be able to make 
a decision. That was not contemplated by the Founders, nor would it 
have been welcomed by the Founders.
  Shamefully, Senate Republicans have said they have no intention of 
even meeting with a nominee put forward by President Obama. That is not 
only disrespectful of the President of the United States, Barack Obama, 
but it is contrary to the best interest of the Supreme Court, but more 
importantly, to the people of this country.
  It is appalling that Republicans would prefer to leave a vacancy on 
the Supreme Court, thereby rendering it in some cases unable to make a 
decision, unable to perform its duties of being the final arbiter when 
circuits may differ on an issue.
  If Members of one party or another were simply to ignore the other 
side and refuse to carry out their duties within a divided government, 
our democracy would break down, and in some respects it has.
  We ought not to carry that conduct to the Supreme Court. We must not 
let that happen and we must not allow this Supreme Court vacancy to 
remain unfilled.
  The Court currently has a number, as the gentleman from New York has 
pointed out, of major cases pending that require a decision; not to be 
remanded to a lower court, because if that is done, that judgment may 
stand for that circuit, but there will be other circuits around the 
country who may make a different decision.
  Mr. Speaker, the Supreme Court has been a powerful safeguard of 
American's liberty and equality over the past century and beyond.
  From recognizing the right of every child to attend desegregated 
schools, to protecting every loving couple who wishes to marry, the 
Court has breathed life into the words of our Declaration of 
Independence that all are ``created equal, and they are endowed by 
their Creator,'' not by us, not by the Constitution, ``by their Creator 
with certain unalienable rights.''
  That may be self-evident, Mr. Speaker, but it is not self-executed. 
And we have established the Supreme Court of the United States to make 
a decision so that that can be realized.
  Melissa Hart, Director of the Byron White Center, a former member of 
the Supreme Court for Constitutional Law at the University of Denver 
said, if we don't act, ``It would be a monumental crisis for the 
development of the law and the need to resolve legal questions.''
  Caroline Frederickson, president of the American Constitution Society 
for Law and Policy, wrote on February 19,

[[Page 2424]]

``It would be unfathomable to go through this term,'' and as Mr. Scott 
pointed out, the next term, ``with a Supreme Court hobbled by a 
vacancy.''
  Mr. Speaker, let me remind you again, if a President dies, 
immediately we fill the vacancy. If a Member of Congress dies, every 
State has a time limit in which that must be filled so that democracy 
can be represented and operate in the way our Founders wanted it to 
operate.
  When the President nominates a candidate to the Court, the Senate, in 
my view, Mr. Speaker, has a responsibility under the Constitution to 
give that nominee every due consideration. They do not have a 
constitutional responsibility to approve it, as Mr. Scott has pointed 
out, but they have a responsibility to consider it.
  We must not allow politics, we must not allow politics, we must not 
allow politics to allow the obstruction of this most essential 
institution of our democracy and the rule of law.
  I want to thank my friends in the Congressional Black Caucus for 
leading this Special Order and for their efforts to hold Senate 
Republicans accountable for their blatantly irresponsible action on 
this matter.
  Mr. Speaker, there is always another election. It may be 2 years 
away, it may be 4 years away, but if we adopt the principle that if we 
don't think we can win now, we will obstruct now and hope to win later, 
America and Americans will not be well-served.
  I thank my friend for yielding.
  Mr. JEFFRIES. Mr. Speaker, I thank the distinguished Democratic whip 
for a very insightful and powerful observation, for pointing that the 
very fabric of the United States Constitution is threatened by the 
willingness of Senate Republicans to abdicate their legislative 
responsibilities to hold hearings and act on a nomination put forth by 
the President of the United States of America.

                              {time}  1945

  It is now my great honor and privilege to yield to the distinguished 
chairman of the Congressional Black Caucus, as was pointed out by Mr. 
Hoyer, a former prominent member of the North Carolina judiciary, a 
legal scholar, a historian, and, of course, the leader of the 
conscience of the Congress here in the United States House of 
Representatives.
  Mr. Speaker, I yield to the chairman, G. K. Butterfield.
  Mr. BUTTERFIELD. Mr. Speaker, let me begin tonight by thanking the 
gentleman, Mr. Jeffries, for yielding to me this evening and to thank 
him for his extraordinary friendship and leadership in the 
Congressional Black Caucus.
  I want to publicly thank you for coming to my district this past 
weekend. You spoke--some would say you preached--at Mount Vernon 
Baptist Church in Durham, North Carolina, and I thank you so very much 
for the message that you brought to my constituents in North Carolina.
  Mr. Speaker, moments after the death of Justice Scalia, the majority 
leader of the United States Senate announced to the country in a tone 
of defiance that the Senate will not consider any nomination--any 
nomination--of President Barack Obama to replace Justice Scalia. Mr. 
Speaker, the American people can see right through this.
  Though I represent a Democratic-leaning district in North Carolina, I 
represent many Republicans in North Carolina. Many of them have told me 
how disappointed they are with the Senate Republican leadership in 
making this announcement. Senator McConnell is reinforcing the 
Republican political agenda to disrupt--to disrupt--governmental 
functions when the circumstances do not line up with their conservative 
philosophy.
  It is imperative that we have nine members of the U.S. Supreme Court 
deciding constitutional issues that are important to the American 
people. The irony in all of this is that my Republican friends 
constantly on this floor talk about strict construction of the 
Constitution. A strict construction of the Constitution, as Mr. Hoyer 
said a moment ago, requires the President to nominate an individual 
once there is a vacancy on the Court. The Senate, the United States 
Senate, has the awesome responsibility of having a hearing, deciding, 
and confirming the nomination by an up-or-down vote. So it is absurd to 
suggest that President Obama should be denied the opportunity to 
nominate a qualified Justice to replace Justice Scalia.
  The American people should clearly understand that Senate Republicans 
have a political agenda to pack the Court with conservative Justices 
who would reverse years of commonsense progressive jurisprudence. So 
the Congressional Black Caucus tonight demands Senate Republicans to 
stop the complete blockade and the blatant disrespect of our President.
  Senate Republicans' outright refusal to hold a hearing on any 
individual nominated by the President to serve on the Court is an 
affront to our Constitution and the American people. Such divisive 
actions undermine our democracy and reduce our standing in the world. 
This blockade is an obstruction and runs afoul of the duties held by 
those who hold a seat in the august Chamber of the United States 
Senate.
  I have read that Senator Grassley, Senator McConnell, and others will 
meet with President Obama this week. I hope they meet. I hope they sit 
together and reconcile their differences because this issue needs to be 
put to rest. We call on Senate Republicans to hold hearings once 
President Obama submits his nomination and follow the procedures set 
forth in the Constitution.
  In short and in closing, the Congressional Black Caucus, the 45, 46 
members of the Congressional Black Caucus--and, indeed, the American 
people--have one message--one message--for Senate Republicans: Do your 
job. Don't play partisanship. Don't play a partisan game with the 
Supreme Court of the United States of America. It is too serious. It is 
too important.
  Thank you very much, Mr. Jeffries.
  Mr. JEFFRIES. I thank the distinguished chair for pointing out that 
this is a simple question for Senate Republicans: Do your job 
consistent with your obligations and responsibilities under Article II, 
section 2 of the United States Constitution.
  The Senate Republicans' failure to act or consider any nominee put 
forth by the President of the United States of America is an abdication 
of responsibility, a dereliction of duty, and it would be a stunning 
act of legislative malpractice that undermines the rule of law, the 
Presidency, the Supreme Court, the United States Constitution, as well 
as the American people.
  I am thankful now to be joined by someone who is a powerful voice for 
the voiceless here in the House of Representatives, who has ably served 
her constituents in northern California and consistently fought for a 
fair, equitable society. Let me now yield to my good friend, the 
distinguished gentlewoman from California, Representative Barbara Lee.
  Ms. LEE. Mr. Speaker, let me thank the gentleman from New York for 
yielding, but also for his tremendous leadership.
  You and Congresswoman Joyce Beatty from Ohio really have sounded the 
alarm, beat the drum, and really brought to the American people the 
important issues that we are dealing with each and every day, so I just 
have to thank you for your diligence and for staying the course. Every 
week you are here, you are representing not only this Congress, but the 
country very, very well. So thank you.
  Mr. Speaker, I rise today with all my colleagues from the 
Congressional Black Caucus, with our whip, Mr. Hoyer, and others to 
urge our Republican colleagues in the Senate to, of course, do your 
job.
  Also, let me just remind us, once again, the President is trying to 
meet his constitutional obligation once again. He is trying to do what 
he is supposed to do, and that is to nominate Justice Scalia's 
replacement to our Nation's highest Court. And Senate Republicans have 
a constitutional responsibility to give the President's nominee a 
speedy and fair hearing, followed up with a simple up-or-down vote.
  Sadly, these Senate Republicans said ``no'' to their constitutional 
responsibility. The Supreme Court has a huge

[[Page 2425]]

responsibility of deciding cases that impact every aspect of American 
life, from our elections, college admissions, to scientific patents and 
a woman's right to make her own healthcare decisions. It is imperative 
that the Supreme Court be allowed to function in its full capacity with 
nine Justices.
  Former Supreme Court Justice Sandra Day O'Connor, who was appointed 
by a conservative President, President Ronald Reagan, did not mince 
words in her condemnation of Republicans playing politics with the 
Court. She said: ``We need somebody in there to do the job and just get 
on with it.''
  Former Justice O'Connor, I could not agree more.
  Despite the calls for action and a constitutional mandate, Senate 
Majority Leader Mitch McConnell of Kentucky has said that there will be 
no hearings, no votes, not even a meeting with President Obama to 
discuss the late Justice Scalia's replacement.
  That is just wrong. His actions prompted The New York Times to 
editorialize that he ``seems to have lost touch with reality and the 
Constitution,'' speaking of Majority Leader Mitch McConnell.
  Mr. Speaker, I include in the Record a couple of New York Times 
articles.

                [From The New York Times, Feb. 17, 2016]

             Blacks See Bias in Delay on a Scalia Successor

                (By Maggie Haberman and Jonathan Martin)

       Charleston, SC.--As he left Martha Lou's Kitchen, a soul 
     food institution here on Wednesday, Edward Gadsden expressed 
     irritation about the Republican determination to block 
     President Obama from selecting Justice Antonin Scalia's 
     replacement on the Supreme Court.
       ``They've been fighting that man since he's been there,'' 
     Mr. Gadsden, who is African-American, said of Mr. Obama, 
     before pointing at his forearm to explain what he said was 
     driving the Republican opposition: ``The color of his skin, 
     that's all, the color of his skin.''
       When Senator Mitch McConnell of Kentucky, the majority 
     leader, said after Mr. Scalia's death on Saturday that the 
     next president, rather than Mr. Obama, should select a 
     successor, the senator's words struck a familiar and painful 
     chord with many black voters.
       After years of watching political opponents question the 
     president's birthplace and his faith, and hearing a member of 
     Congress shout ``You lie!'' at him from the House floor, some 
     African-Americans saw the move by Senate Republicans as 
     another attempt to deny the legitimacy of the country's first 
     black president. And they call it increasingly infuriating 
     after Mr. Obama has spent seven years in the White House and 
     won two resounding election victories.
       ``Our president, the president of the United States, has 
     been disrespected from Day 1,'' Carol Richardson, 61, said on 
     Wednesday as she colored a customer's hair at Ultra Beauty 
     Salon in Hollywood, S.C., a mostly black town near 
     Charleston. ``The words that have been said, the things the 
     Republicans have done they'd have never have done to another 
     president. Let's talk like it is, it's because of his skin 
     color.''
       Reflecting on the Supreme Court vacancy, Bakari Sellers, a 
     former state representative from Denmark, S.C., likened the 
     Senate treatment of the president to the 18th century 
     constitutional compromise that counted black men as 
     equivalent to three-fifths of a person.
       ``I guess many of them are using this in the strictest 
     construction that Barack Obama's serving three-fifths of a 
     term or he's three-fifths of a human being, so he doesn't get 
     to make this choice,'' Mr. Sellers said. ``It's 
     infuriating.''
       The anger and outrage that Mr. McConnell's position has 
     touched off among African-Americans could have implications 
     for the presidential election. Leading African-American 
     Democrats are trying to use it to motivate rank-and-file 
     blacks to vote in November, the first presidential election 
     in a decade in which Mr. Obama will not be on the ballot and 
     in which Democrats fear black participation could drop.
       ``Anger becomes action when it's directly tied to a moment, 
     and the moment now is the election on Nov. 8,'' said Stacey 
     Abrams, a Democratic state representative from Georgia and 
     the House minority leader there, adding that Mr. Scalia's 
     death meant that this presidential campaign could no longer 
     be construed as a mere ``thought exercise.''
       For Hillary Clinton, who is increasingly relying on 
     nonwhite voters to ensure her success against Senator Bernie 
     Sanders of Vermont, the court issue could be especially 
     crucial. Should she defeat Mr. Sanders, who has electrified 
     many liberals, she will need a motivating issue to bring Mr. 
     Obama's loyalists to the polls. She moved swiftly Tuesday to 
     tap into the anger of blacks over the opposition of Senate 
     Republicans to Mr. Obama's naming a replacement for Justice 
     Scalia.
       ``Now the Republicans say they'll reject anyone President 
     Obama nominates no matter how qualified,'' Mrs. Clinton said 
     in remarks before a predominantly black audience in Harlem. 
     ``Some are even saying he doesn't have the right to nominate 
     anyone! As if somehow he's not the real president.''
       Doing so, Mrs. Clinton added, is in keeping with a 
     longstanding pattern of mistreatment.
       ``They demonize President Obama and encourage the ugliest 
     impulses of the paranoid fringe,'' she said. ``This kind of 
     hatred and bigotry has no place in our politics or our 
     country.''
       Republicans are especially sensitive about the notion that 
     they are diminishing Mr. Obama because of his race, and 
     spokesmen for several Republican senators, including Mr. 
     McConnell and Senator Tim Scott of South Carolina, declined 
     to comment or would not make the senators available for 
     comment.
       The suggestion that racism is playing a role angers Mr. 
     McConnell's friends, who point out that his formative 
     political experience was working for a Republican senator who 
     supported civil rights, that he helped override President 
     Ronald Reagan's veto of sanctions against the apartheid 
     government in South Africa and that he is married to an 
     Asian-American woman.
       But in the aftermath of Mr. McConnell's statement on 
     Saturday, a growing chorus of black voices is complaining 
     that such a refusal to even consider a Supreme Court nominee 
     would never occur with a white president.
       ``It's more than a political motive--it has a smell of 
     racism,'' said Representative G. K. Butterfield, Democrat of 
     North Carolina, the chairman of the Congressional Black 
     Caucus.
       ``I can tick instance after instance over the last seven 
     years where Republicans have purposely tried to diminish the 
     president's authority,'' Mr. Butterfield said. ``This is just 
     really extreme, and leads me to the conclusion that if this 
     was any other president who was not African-American, it 
     would not have been handled this way.''
       Even as Mr. Obama's popularity has risen and fallen, his 
     base of support among black voters has been unshakable. A 
     Gallup tracking poll this month showed that some 85 percent 
     of African-Americans approved of the president's performance 
     compared with only 36 percent of whites. And many African-
     Americans strongly identify personally with Mr. Obama, and 
     have watched his tenure with pride.
       Mr. Butterfield said that he believed that the effort to 
     undermine, and even delegitimize, Mr. Obama began soon after 
     he was sworn in, and that Congressional Republicans had 
     blocked Mr. Obama's agenda wherever they could. Even more 
     stinging were the suggestions from some on the right that Mr. 
     Obama, a Christian, is actually a Muslim and that he was not 
     born in the United States.
       In interviews, members of the Congressional Black Caucus 
     also bitterly recounted indignities, such as demands--most 
     pointedly from the current Republican front-runner in the 
     polls, Donald J. Trump, in 2011--that Mr. Obama prove he was 
     born in Hawaii, and not in Kenya, as some critics claimed. 
     Others recalled the calls to impeach Mr. Obama over his use 
     of executive authority.
       ``You hear the thing about: `He's not a citizen. He 
     oversteps his bounds. He's divisive.' One thing after 
     another,'' said Representative Marcia L. Fudge, Democrat of 
     Ohio. ``This has been going on since the day he was elected 
     in 2008.''
       Republicans have had more success than Democrats in recent 
     decades galvanizing their voters over who should control the 
     courts. But Jennifer McClellan, a member of the Virginia 
     House of Delegates and the Democratic National Committee, 
     said the dispute over how to replace Justice Scalia could now 
     become ``an issue for the average citizen.''
       Ms. Abrams agreed, saying the Supreme Court and its 
     powerful influence on people's lives is especially resonant 
     with blacks. ``Congress is denying our president his rights 
     as a president, but, more than that, they're denying the 
     legacy of his presidency,'' she said. ``That will animate 
     Democratic voters across the board but especially African-
     Americans, who realize more than many voters how great an 
     impact the Supreme Court can have on freedom.''
                                  ____


                [From The New York Times, Feb. 24, 2016]

      Senate Republicans Lose Their Minds on a Supreme Court Seat

                        (By the Editorial Board)

       Following the death of Justice Antonin Scalia, Senate 
     Republicans apparently believe they can profit by creating a 
     political crisis that the nation has never seen before. On 
     Tuesday, the leadership doubled down on its refusal to take 
     any action on any nominee from President Obama to replace 
     Justice Scalia.
       Senator Mitch McConnell of Kentucky, the majority leader 
     who seems to have lost touch with reality and the 
     Constitution, accused Mr. Obama of plunging the nation into a 
     ``bitter and avoidable struggle'' should he name anyone to 
     the court.
       Forget an up-or-down vote on the Senate floor. Top 
     Republicans are pledging not to

[[Page 2426]]

     hold hearings or even to meet with a nominee.
       In a statement dripping with sarcasm, Mr. McConnell said 
     that Mr. Obama ``has every right to nominate someone,'' and 
     ``even if doing so will inevitably plunge our nation into 
     another bitter and avoidable struggle, that is his right. 
     Even if he never expects that nominee to actually be 
     confirmed but rather to wield as an electoral cudgel, that is 
     his right.''
       Senator John Cornyn of Texas, the majority whip, said, ``We 
     believe the American people need to decide who is going to 
     make this appointment rather than a lame-duck president.''
       These statements are so twisted that it's hard to know 
     where to begin. Let's take them one by one.
       First, Mr. Obama is not a ``lame-duck president.'' The 
     lame-duck period is broadly understood to run from after the 
     November election until a new president is inaugurated in 
     January. November is more than eight months off. Based on the 
     average number of days it has taken the Senate to act on 
     previous Supreme Court nominees, the seat could be filled by 
     this spring.
       Second, no matter how often Republicans repeat the phrase 
     ``let the people decide,'' that's not how the system works. 
     The Constitution vests the power to make nominations to the 
     court in the president, not ``the people.'' In any case, the 
     people have already decided who should make this appointment: 
     They elected Mr. Obama twice, by large margins.
       Third, it is preposterous to accuse Mr. Obama of causing a 
     ``bitter struggle'' by nominating someone who will not be 
     confirmed. The only reason a nominee would not be confirmed 
     is that the Senate has pre-emptively decided to block any 
     nominee sight unseen. Mr. Obama is once again the only adult 
     in the room, carrying out his constitutional obligation while 
     Senate Republicans scramble to dig up examples of Democrats 
     trying to block nominees. But those examples show only that 
     Democratic senators have pushed hard for Republican 
     presidents to pick ideologically moderate nominees. Until 
     now, neither party has ever vowed to shut down the nomination 
     process entirely, even before it has begun.
       Only two Republican senators, Mark Kirk of Illinois and 
     Susan Collins of Maine, were brave enough to say that they 
     would vote on President Obama's nominee. This is what passes 
     for moderation in today's G.O.P.: simply stating a 
     willingness to do the job you were elected to do.
       Unfortunately, for too many Republicans moderation now 
     equals apostasy. These Republicans have stubbornly parked 
     themselves so far to the right for so many years that it is 
     hard to tell whether they can hear how deranged they sound.
       The truth is they are afraid--and they should be. They know 
     Mr. Obama has a large pool of extremely smart and thoroughly 
     mainstream candidates from which to choose a nominee. They 
     know that if the American people were allowed to hear such a 
     person answer questions in a Senate hearing, they would 
     wonder what all the fuss was about.
       So Mr. McConnell and his colleagues plan to shut their 
     doors, plug their ears and hope the public doesn't notice. 
     The Republican spin machine is working overtime to 
     rationalize this behavior. Don't be fooled. It is panic 
     masquerading as strength.

  Ms. LEE. One of the titles of these articles is ``Blacks See Bias in 
Delay on a Scalia Successor.'' The other is The New York Times article, 
``Senate Republicans Lose Their Minds on a Supreme Court Seat.''
  Likewise, Judiciary Committee Chair Charles Grassley of Iowa led a 
letter to the majority leader signed by all the Republican Committee 
members confirming their resolve to not have hearings or a vote on the 
nominee.
  This is downright ludicrous. Republicans cannot and should not use 
the Supreme Court to push their radical political agenda.
  The Constitution is clear, Mr. Speaker. Article II, section 2, ``He 
shall have power, by and with the advice and consent of the Senate . . 
. shall appoint ambassadors, other public ministers and consuls, Judges 
of the Supreme Court.''
  Nowhere in the Constitution does it say, ``except in an election 
year'' or ``except when the President is a Democrat'' or ``when 
Republicans have spent the last 7 years actively working to subvert 
every policy proposed by a President elected by nearly 70 million 
Americans.'' The Constitution doesn't say that. This is simply 
unacceptable, and the American people deserve better.
  For more than a century, every single Supreme Court nominee has 
received a vote on the floor of the United States Senate. Just like all 
the Presidents before him, President Obama should nominate a Supreme 
Court Justice, and the Senate should determine if he or she is fit to 
serve on this Nation's High Court.
  Instead, Republicans are holding the Supreme Court and the American 
people hostage.
  Their action, in the words of The New York Times, is simply, ``panic 
masquerading as strength.'' The Senate has a responsibility to at least 
consider the President's Supreme Court nominee, and by refusing to do 
so, they are failing their constituents and their Nation.
  So, Mr. Speaker, it is really past time for Majority Leader McConnell 
and the rest of the Republican leadership to do their jobs and work 
together to get a new Supreme Court Justice. The Supreme Court is way 
too important to be used as a political bargaining chip. Enough is 
enough.
  So, once again, I join my colleagues, Congressman Jeffries, 
Congresswoman Beatty, members of the Congressional Black Caucus, and 
the American people in saying, ``Do your job.''
  Once again, thank you for giving me the opportunity to join with you 
tonight.
  Mr. JEFFRIES. I thank the distinguished gentlewoman from California 
for making several important points as it relates to the absence of any 
partisanship exception in the United States Constitution, the absence 
of any exception whereby the Senate will do its job unless, of course, 
President Barack Obama happens to occupy 1600 Pennsylvania Avenue. I 
see that nowhere within the four corners of the United States 
Constitution. I don't see an election year exception in the United 
States Constitution. So I am perplexed as to what is the situation we 
find ourselves in right now.
  I thought that I may ask the distinguished gentlewoman, my colleague, 
my coanchor from Ohio, to reflect upon, if you might, a few comments 
that could shed light on the situation we find ourselves in right now 
as it relates to the Supreme Court vacancy made by Senate Majority 
Leader Mitch McConnell over the years during his time here in Congress.
  In 1986, Mitch McConnell said: ``I believe that a heavy burden must 
be met by those who would have this nominee rejected. Under the 
Constitution, our duty is to provide advice and consent to judicial 
nominations, not to substitute our judgment for what are reasonable 
views for a judicial nominee to hold.'' That was in 1986.
  Then in 1990, he said: ``It is clear under our form of government 
that the advice and consent role of the Senate in judicial nominations 
should not be politicized.'' That was Mitch McConnell in 1990.
  In 2005, he said: ``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.''
  I am trying to figure out what has changed, Representative Beatty.
  Mrs. BEATTY. Thank you so much, Congressman Jeffries.
  Hearing you quote those things, three things come to mind. First, let 
me say that Congressman Steny Hoyer was absolutely right when he says 
that this issue of not filling the vacancy is not related to only one 
group. So I want to say, after hearing what you said and many others of 
our members of the Congressional Black Caucus, it is important for us 
to know why we are calling on the Senate Republicans to do their job, 
and that is because we are the voice for those who are not often 
represented. We are the voice for those when you talk about issues 
related to women and women's rights, when you talk about issues that 
are related to things that affect you and me, and when you talk about 
the article that Congresswoman Barbara Lee entered into the Record, 
``Blacks See Bias in Delay on a Scalia Successor.''
  Now, that article says it all. That article specifically states that 
many folks believe, in this wonderful America that we live in, that it 
is also because of the color of his skin. I think that is another 
reason that we come as a strong 46 members of the Congressional Black 
Caucus, because the facts work against them.

[[Page 2427]]

  Think about it. When we look at the number of people who have been 
appointed, when we look at the number of days, if you look at since 
1975, it has only taken an average of 67 days to confirm a President's 
nominee to the Supreme Court. The Senate has never taken more than 125 
days to vote on a Supreme Court nominee, and there are 325 days left in 
President Obama's term.

                              {time}  2000

  Since the early 1900s, six Supreme Court Justices have been confirmed 
in an election year. When I think about your question and I think about 
your sharing with us some of the comments that Senate Majority Leader 
Mitch McConnell has said, let me add this one to the Record. And it is 
something he got right.
  He said that the American people should have the right to choose the 
President who will pick the next Supreme Court Justice deciding the 
future balance of the Nation's highest court. Well, he got that right. 
Because you know what. The people did pick the President when they 
picked President Barack Obama in 2012, who won the election by 5 
million votes.
  I am calling on him and the Senate Republicans to do their job, to 
allow the President to do what the Constitution tells us, to allow the 
President, who has already said that he is going to bring somebody who 
is full of scholarship, he is going to bring someone who is committed 
and capable to doing the people's work--I wanted to add that to your 
statement and share with everyone tonight that is why we are here.
  Mr. JEFFRIES. I really appreciate that.
  As we are simply trying to point out, all we are asking for is for 
the Senate to adhere to its constitutional responsibilities and, when 
the President sends forth a nominee, to conduct a rigorous hearing 
process before the American people and then, at the end of that 
process, provide that nominee with an up-or-down vote before the 
Judiciary Committee and then, ultimately, the floor of the United 
States Senate.
  Now, I have been in this institution for a little over 3 years. If I 
had a dollar for every time some of my colleagues mentioned strict 
adherence to the United States Constitution, I would be a billionaire 
right now. For the life of me, I can't understand what is so 
complicated about this particular issue.
  As Representative Beatty so ably pointed out, from this moment, there 
are 325 days remaining in the Presidency of Barack Obama.
  As this chart illustrates, if you just take a look at the current 
occupants of the Supreme Court, Justice Roberts, the Chief Justice, the 
most important position on the Supreme Court, a 23-day confirmation 
process; Justice Scalia, confirmed in 85 days; Justice Kagan, 87 days; 
Justice Sotomayor, 66 days; Justice Ruth Bader Ginsburg, 
a/k/a the notorious RBG--one of my personal favorites--50 days; Justice 
Clarence Thomas, 99 days.
  You can add some of these confirmation periods together and you still 
wouldn't get to 325. So what is the problem?
  Mr. Speaker, how much time do I have remaining on my Special Order 
today?
  The SPEAKER pro tempore. The gentleman from New York has 12 minutes 
remaining.


                             General Leave

  Mr. JEFFRIES. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days in which to revise and extend their remarks 
and include any extraneous material on the subject of this Special 
Order.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New York?
  There was no objection.
  Mr. JEFFRIES. Mr. Speaker, one of the concerns that I think we in the 
Congressional Black Caucus have as it relates to the Presidency of 
President Obama--and Representative Beatty pointed this out--is that 
there is a feeling in many corners of America that this President is 
treated differently.
  I am not sure if it is because there are some people here in the 
Capitol who have something against folks from Hawaii. I am not sure if 
it is his Kansas roots. I don't know if they dislike the fact that he 
was a community organizer in terms of one of the jobs that he held 
after school.
  I don't know if they dislike the fact that he is so well educated 
from Columbia and Harvard Law Schools. I don't know if it is the fact 
that he was the President of the Harvard Law Review or a constitutional 
law professor at the University of Chicago Law School, one of the top 
five law schools in this country.
  I don't really know what it is about Barack Obama that they want to 
treat him differently than almost any other President who has served at 
1600 Pennsylvania Avenue. I am trying to figure it out. What is it 
about Barack Obama that he has to be treated with such disrespect?
  The amazing thing to me is that they have actually failed to stop 
this President. They gave him no assistance as it relates to trying to 
turn the economy around.
  He inherited a train wreck from George W. Bush and has gotten the 
economy back on track. Not a single Member from the other side of the 
aisle voted for the stimulus package, which was necessary to stabilize 
the economy and then build it up.
  There was 71 consecutive months of private sector job creation, and 
14 million-plus private sector jobs were created under this Presidency. 
The unemployment rate has gone from over 10 percent to under 5 percent. 
The stock market has gone from 6,000 to over 16,000.
  The deficit has been reduced by more than $1 trillion. Gas prices are 
below $2 per gallon. More than 18 million previously uninsured 
Americans now have health coverage.
  Not a single one of those accomplishments occurred with a vote from 
the other side of the aisle. What is it about this President that they 
don't like?
  Now, in his final term--and, by the way, speaking to strict 
constructionists--when you look at the United States Constitution, I 
can't find a 3-year term. I can't find it. It is a 4-year term with 325 
days left.
  All we are asking is that they just do their job. It is pretty 
simple. Give whoever the President puts forth a fair hearing. They have 
the votes to defeat any of his nominees.
  Let me ask my colleague from Ohio. What I haven't been able to 
understand is this Justice who I have disagreed with on many issues. 
Although he was strong--Justice Scalia--on the privacy rights of the 
American people, the Fourth Amendment--was concerned about the 
criminalization of politics, these are areas where there is some common 
ground.
  And certainly he was a giant in terms of legal thought. The news of 
his demise was barely out for public consumption when Mitch McConnell 
issued a statement saying: We are not considering anyone that President 
Obama puts forth.
  How do you explain that? How do you interpret that reaction? We 
couldn't even respect the death of Justice Scalia before the vacancy 
was politicized, before he was even buried and funeralized.
  Mrs. BEATTY. Congressman Jeffries, I think you answered that question 
for me when you gave the long list of successes that this President has 
done without their help.
  That gave me pause to think: What is it that is keeping them from 
doing their job? Why is it that they are so threatened?
  Maybe it is the success that this President has brought forth not for 
you and I, not for the 435 Members of us, but he has done this for this 
Nation. He has made it a better place.
  When we look at what the Justices do and represent, when we think 
about liberties and freedoms and the economy and our rights, I think 
they are afraid that he will appoint someone who will have that same 
scholarship, who will have that same success, someone who will bring 
balance. I think they are afraid of the balance.
  In the words of another one of our colleagues, I might add, from the 
great State of Ohio, Congresswoman Marcia

[[Page 2428]]

Fudge, former chair of the Congressional Black Caucus--she has words 
that she is entering, but I would like to quote from her words to 
remind us why we are saying: Senate Republicans, do your job.
  She reminds us, as Members of Congress, we made a promise to our 
constituents that we would faithfully discharge the duties and the oath 
of office which we took, which we were elected to. She reminded me in 
her words that it is so important for us to say tonight to the Senate: 
Do your job. Do your job.
  I think they are afraid. So I am going to issue a challenge. 
Congresswoman Barbara Lee said that you are here tonight initiating 
this topic because we are sounding the alarm, we are ringing the bell.
  I challenge them to answer that question. I challenge them to share 
with not only the Congressional Black Caucus, not only the Members of 
Congress, not only the Members of the Senate, but they have an 
obligation to America, to the citizens of these United States, Mr. 
Speaker, for them to tell us why they are not doing their job.
  Mr. JEFFRIES. I thank the distinguished gentlewoman for those very 
powerful words. I can only hope, as we close this Special Order hour, 
that our colleagues from across this Capitol will see fit simply to 
adhere to their constitutional responsibilities to consider any nominee 
put forth by President Obama comprehensively and fairly and to 
faithfully execute those obligations consistent with their oath of 
office, not for the good of this President, not for the good of this 
Article I Congress, but for the good of the United States of America.
  I yield back the balance of my time.
  Ms. FUDGE. Mr. Speaker, when taking office, every Member of Congress 
swears to support and defend the Constitution of the United States. 
This includes Article II, Section 2, Clause 2, also known as the 
``Appointments Clause.''
  The Appointments Clause clearly states the President has the power to 
nominate Justices of the Supreme Court. Nowhere does this clause state 
the President abdicates this constitutional responsibility during a 
presidential election year. And, nowhere does it state the U.S. Senate 
can make threats against the President for exercising his 
constitutional authority. Our separate branches of government exist to 
provide checks and balances against tyranny, not to hijack 
Constitutional processes for political gain.
  Many Republicans have argued that Supreme Court Justices are not 
typically appointed during presidential election years, and especially 
during a president's last term. To those claims I invoke Mahlon Pitney, 
Louis Brandeis, John H. Clarke, Benjamin Cardozo, Frank Murphy, and 
Anthony Kennedy--all examples of Supreme Court Justices who were 
confirmed during a presidential election year.
  Supreme Court Justices Anthony Kennedy and Benjamin Cardozo in 
particular, were confirmed during President Reagan and President 
Hoover's last years, respectively. Justice Louis Brandeis was nominated 
and confirmed in 1916 to replace Justice Joseph Lamar, who died in 
early January of that same year.
  Not only has the Senate voted on and confirmed Supreme Court nominees 
during presidential election years, the process has never taken more 
than 125 days. In fact, on average, nominees have been confirmed, 
rejected, or withdrawn within 25 days. Ample time remains for President 
Obama to work with Congress to approve a nominee.
  However, Republican leadership has once again let politics get in the 
way of doing what the American people elected them to do.
  The Constitution is clear. Just as we honor our First Amendment right 
to freedom of religion or our Second Amendment right to bear arms, so 
should we defend the constitutionality of the Supreme Court appointment 
process. We cannot pick and choose which sections we enforce.
  As Members of Congress, we made a promise to our constituents that we 
would ``faithfully discharge the duties of the office on which'' we 
have been elected to. It is the Senate's duty to consider a Supreme 
Court nominee.
  I implore my Republican colleagues: Put politics aside and do your 
job; do not block President Obama's nominee. Rulings handed down by the 
Supreme Court directly affect our economy, security, and civil rights. 
This seat is too important to leave vacant.
  Mr. PAYNE. Mr. Speaker, barely an hour after Justice Scalia's death 
was confirmed, Senate Majority Leader Mitch McConnell issued a 
statement rejecting any judge President Obama chose to nominate to the 
Supreme Court.
  At that point, the President hadn't even announced his intention to 
fill the vacancy on our highest court.
  It's a sad state of affairs that the highest ranking Republican in 
the Senate would politicize the Court in such a grotesque way when many 
of us were still learning of Justice Scalia's passing.
  But this is par for the course for the Republicans. On issue after 
issue, debate after debate, they continue to solidify their reputation 
as the party of ``no,'' to the detriment of this great nation.
  Senate Republicans continue to maintain that they will deny a 
confirmation hearing to any individual nominated by President Obama to 
serve on the Supreme Court.
  This is part of the Republican political agenda to disrupt the work 
of government when it does not align with their far-right ideology.
  It is a thinly-veiled attempt to obstruct the nomination process in 
hopes of packing the Supreme Court with conservative justices who will 
roll back the progress our nation has made, from marriage equality to 
reproductive rights.
  We have already seen what is at stake here. In 2013, the Supreme 
Court struck down the heart of the Voting Rights Act--a major setback 
for civil rights and voting rights, and a major blow to fundamental 
democracy in this country.
  The president has a constitutional responsibility to nominate a 
successor to Justice Scalia.
  The Senate also has a constitutional responsibility--to give the 
nominee a fair hearing and a timely vote.
  This is about democracy and protecting the institution of the Supreme 
Court.
  What we are seeing from Republicans is a clear pattern of 
obstruction. They have shut down the government, threatened not to pay 
our debts, and halted the nomination process before it has even begun.
  This divisiveness is a detriment to our democracy, an affront to 
justice, and an insult to the American people, who deserve to have 
their nation's highest court working at full capacity.
  Republicans have said that there is no precedent for confirming a 
Supreme Court nominee during an election year. That is blatantly wrong: 
six Justices have been confirmed in presidential election years, 
including three Republican appointees.
  Since the 1980s, Congress has almost never left any vacancy during a 
single Supreme Court session.
  What is unprecedented in modern history is denying the President of 
the United States a hearing or vote on a nomination to the Supreme 
Court.
  And yet that's what the Republican plan is.
  It's hard not to see this as an effort to delegitimize the nation's 
first black president.
  Republicans have been trying to derail President Obama ever since he 
took office.
  And now, whoever ends up being nominated for the Supreme Court, 
regardless of qualifications, will be rejected simply because he or she 
is an Obama nominee.
  The disdain Republicans have for Obama is so great that they are 
willing to trample on the U.S. Constitution to prevent him from 
appointing a judge to the Supreme Court.
  The U.S. Constitution--the very document that Republicans like to 
accuse the President of ignoring--states that the president ``shall 
nominate, and by and with the Advice and Consent of the Senate, shall 
appoint . . . Judges of the Supreme Court.''
  Not only does he have the right, he has a duty to appoint a judge to 
the Court.
  Now, President Obama made clear that he seeks judges ``who approach 
decisions without any particular ideology or agenda, but rather a 
commitment to impartial justice, a respect for precedent, and a 
determination to faithfully apply the law to the facts at hand.''
  There is nothing radical about the President's position. His comments 
speak to his respect for the law and the seriousness he brings to the 
nomination process.
  Republicans must do their job as it relates to that process--
earnestly debate and then vote on the person nominated by the 
President.
  There are many hotly debated issues in our country--immigration, gun 
reform, health care, campaign finance; issues that necessitate the 
maximum strength of the Supreme Court.
  The American people deserve far better than attempts by Republican 
politicians in Washington to stack the Supreme Court with far-right 
judges who will forgo impartial justice to advance the conservative 
agenda.
  They expect their government to work for them, and Senate Republicans 
must meet that expectation by swiftly filling the vacancy on the Court.

[[Page 2429]]


  Ms. JACKSON LEE. Mr. Speaker, sixteen days ago, and just moments 
after learning the sad news that Antonin Scalia, the most senior 
Justice on the Supreme Court, had died in his sleep at the age of 79, 
the Republican Senate Majority Leader, announced emphatically that 
``this vacancy should not be filled until we have a new President.''
  Later that evening, the Senate Majority Leader's position was echoed 
at a presidential primary debate in South Carolina by every Republican 
presidential candidate.
  Justice Scalia may have had many qualities but none endeared him more 
to his admirers on that debate stage and across the country than his 
professed devotion to the rule of law, his exaltation of the doctrine 
of ``original intent,'' and his insistence that the meaning of the 
Constitution is to be divined only from the strictest reading of the 
text.
  Given the praise heaped on Justice Scalia by Republican senators and 
presidential candidates, it is passing strange indeed that they claim 
to be honoring his memory by taking a position that repudiates the very 
principles Justice Scalia devoted his life to advancing.
  Mr. Speaker, so-called ``strict constructionists'' claim that the 
Constitution is to be interpreted according to its literal text.
  Well, there is nothing clearer than the provision in Article II, 
Section 2, which states that the President ``with the advice and 
consent of the Senate, shall appoint ambassadors, other public 
ministers and consuls, judges of the Supreme Count[.]''
  To read the Constitution as containing a limitation restricting the 
President's exercise of this power in the fourth year of his term of 
office would be to treat the Constitution as a ``living document'' and 
to engage in the type of judicial activism that Justice Scalia opposed 
and fought during his 30 years on the Court.
  Indeed, just three years ago, at Southern Methodist University in 
Dallas, Justice Scalia in discussing his judicial philosophy, expressed 
his view of the Constitution: ``It's not a living document. It's dead, 
dead, dead.''
  If it had been the original intention of the Framers to restrict the 
President from nominating Supreme Court Justices to fill vacancies 
occurring in the fourth year of his or her term, they would have 
manifested that intent clearly, explicitly, and unmistakably, as they 
did in conditioning Supreme Court appointments to the advice and 
consent of the Senate and in prohibiting the President from exercising 
the Pardon Power in cases of impeachment.
  Mr. Speaker, disregarding the procedure expressly set forth in the 
Constitution for filling vacancies on the Supreme Court because it may 
not result in the appointment of one's preferred justice makes a 
mockery of the ``rule of law,'' adherence to which is claimed to be the 
most sacred principle of both judicial and political conservatives.
  The bottom line is this: for those who revered Justice Scalia, 
cherish his memory, and wish to do honor to the work of his life, the 
way forward is clear.
  And that is for Republican senators to gladly receive, when it is put 
forward, President Obama's nominee to fill the vacancy left by the 
death of their hero and discharge their constitutional duty to advise 
and consent (or not consent) to the nomination as reflected by an up or 
down vote on the nominee.
  Republican senators protest there is an 80 year precedent against 
confirming a Supreme Court nominee during an election year, and 
besides, there is not sufficient time even if they wished to do so.
  This is a short horse soon curried.
  The most recent instance where there was a vacancy on the Supreme 
Court in an election year occurred not 80 but 28 years ago, in 1988, 
during the administration of President Reagan.
  That vacancy was filled on February 3, 1988 by the appointment of 
Justice Anthony Kennedy, who was confirmed 97-0 by a Democrat-
controlled Senate.
  The Justice Kennedy nomination is the controlling precedent, as 
Justice Scalia would recognize.
  The erudite Justice would say to anyone claiming otherwise, ``Leges 
posteriores priores contrarias abrogant,'' which is Latin for the canon 
of judicial interpretation that ``the last expression of the people 
prevails.''
  There are 326 days left in President Obama's term, which is more than 
sufficient time for the President to nominate, and for the Senate to 
consider and vote to confirm or reject his nominee.
  Since 1900, there have been 60 Supreme Court vacancies.
  The average time taken to fill these 60 vacancies is 73 days, which 
is less than 25% of the time remaining in the President's term.
  The average time to fill each of the 13 vacancies since 1975 is a 
mere 67 days.
  And of the current members of the Supreme Court, the average time is 
74 days, the longest being the 99 days taken to confirm the 
controversial nomination of Justice Clarence Thomas in October 1991.
  Mr. Speaker, as is often noted, elections have consequences; they 
also impose responsibilities and duties.
  And one of the most important duties imposed by the Constitution on 
the President is to nominate persons to fill vacancies on the Supreme 
Court and for the Senate to consider those nominations with dispatch.
  The Supreme Court is the nation's highest court and its essential and 
indispensable role in our constitutional system is to provide 
definitive interpretations of American law and the Constitution.
  Its decisions are the law of the land binding in every state and 
territory.
  The Supreme Court is the only judicial tribunal capable of providing 
the legal clarity and certainty required for the legal system to 
function and give meaning to the rule of law.
  President Obama has announced that he intends to fulfill the 
responsibility devolved upon him by the Constitution and will submit to 
the Senate a nominee to fill the large shoes left by the late Justice 
Antonin Scalia.
  The Senate should fulfill its constitutional duty to advise and 
consent, or withhold its consent, by casting an up or down vote on that 
nomination.
  That is the way to pay fitting tribute to Justice Scalia, to honor 
the Constitution, and to keep faith with the American people.

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