[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[House]
[Pages 2507-2508]
[From the U.S. Government Publishing Office, www.gpo.gov]




               SUPREME COURT VACANCIES IN ELECTION YEARS

  The SPEAKER pro tempore. The Chair recognizes the gentleman from 
Connecticut (Mr. Himes) for 5 minutes.
  Mr. HIMES. Mr. Speaker, as you know, it has been the custom of the 
last couple of Congresses to open the Congress with a reading of the 
entire United States Constitution. I have generally not participated in 
that because I am not all that comfortable with public displays of 
piety, and I am a big believer in the notion that what really matters 
is what you do, not what you say.
  Never has the spread between what we say and what we do been quite as 
wide as it is when we consider the approach that my friends on the 
Republican side have taken with respect to the absolutely essential 
constitutional duty of appointing a Supreme Court Justice.
  So I am going to break with my past pattern and read briefly from the 
Constitution, Article II, section 2, which reads:
  ``He shall have power''--that is referring to the President--``by and 
with the advice and consent of the Senate, to make treaties, provided 
two-thirds of the Senators present concur; and he shall nominate, and 
by and with the advice and consent of the Senate, shall appoint 
Ambassadors, other public ministers and consuls, Judges of the Supreme 
Court.''
  And there it ends. He shall appoint Justices of the Supreme Court. 
There it ends.
  There is nothing there about he won't do that in an election year. 
There is nothing there saying that if there is not enough time, he 
won't exercise his constitutional authority. There is nothing there 
that, maybe because then-Senator Biden said something 25 years ago, he 
won't appoint a Supreme Court Justice.
  And yet my colleagues on the other side of the Capitol have said they 
won't even offer the President's nomination the courtesy of a meeting. 
And let's be very clear. That is a profound abrogation of the 
constitutional duty that is set out in black and white in the 
Constitution of the United States.
  So let's just spend a minute on the three objections that we are 
hearing from the Republicans on why the President shouldn't appoint and 
why they shouldn't even extend the courtesy of a meeting to the 
President's proposed appointment to the Supreme Court.
  First and foremost, they say that it is an election year. The 
precedent would dictate that the President not nominate in an election 
year. Well, that is exactly wrong, and you can look it up. These are 
historical facts. I will just read quickly from SCOTUSblog, which a lot 
of people look at, in which Amy Howe, the editor, says: ``The 
historical record does not reveal any instances since at least 1900 of 
the President failing to nominate and/or the Senate failing to confirm 
a nominee in a Presidential election year because of the impending 
election.''
  The historical record does not reveal any instances. And then it goes 
on to list those that have occurred:
  President William Taft nominated Mahlon Pitney. Woodrow Wilson made 
two nominations in 1916--Louis Brandeis and John Clarke. President 
Herbert Hoover nominated Benjamin Cardozo. President Franklin Roosevelt 
nominated Frank Murphy. President Ronald Reagan, patron saint of my 
friends on the other side of the aisle, nominated Justice Anthony 
Kennedy.
  So the idea that there is no precedent is exactly wrong.
  This brings us to the other argument, the second argument, which is 
that there is not time. I brought this graphic here to show that, for 
the last several Presidents, the average approval time was something 
like 2 months. The current President has some 300 days left in his 
term.
  Take a look at this one: approval time for Justices Alito, Roberts, 
Breyer, Ginsburg, and Thomas. If you add all of those individual 
periods of time together, you still don't get the amount of time that 
the current President has left in his term.
  This, of course, brings us to the arguably most laughable argument 
that we hear lately, which is that some 20-plus years ago, then-Senate 
Committee on the Judiciary Chairman Joe Biden said something along the 
lines of perhaps then the President shouldn't make an appointment 
because it was an election year.

                              {time}  1015

  I don't need to point out that, as much as I like and respect the 
Vice President, his words of 25 years ago do not carry constitutional 
force or the force of law. We shouldn't spend a lot of time on that 
argument.
  So what is really going on here? If those are the best arguments 
against even extending the courtesy of a senatorial meeting to the 
President's

[[Page 2508]]

nominee, an unprecedented action, what is really going on?
  Here is what is really going on. It is a government shutdown. We have 
seen this before. When the rules we read at the opening of every 
Congress result in an outcome my friends on the other side of the aisle 
don't like, they simply shut it down. They did that in October 2013.
  Between the days of October 1 and October 16, they shut down the 
Federal Government, an action that Standard & Poor's estimated cost the 
U.S. economy $24 billion, or fully 0.6 percent of our economic growth 
is gone because the Republicans wouldn't accept the Affordable Care 
Act.
  Look, I get that. They don't like it. But it has been passed in due 
course in this House, shown to be constitutional by the Supreme Court, 
and the answer was: No. We don't like it. We are shutting down the 
government.
  Let's not shut down the government over the Supreme Court.

                          ____________________