[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 2656-2658]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. BENNET. Mr. President, I am here tonight to discuss the Supreme 
Court vacancy caused by Justice Antonin Scalia's death.
  First, I think it is important to reflect on Justice Scalia's life 
and profound contribution and influence on the Court and our country. 
He was one of the longest serving Justices in our Nation's history, 
and, as far as I can tell, every single day he served, he applied his 
considerable intellect, integrity, and wit to the work before him.
  Although I disagreed with many of his decisions, I never doubted his 
commitment to the rule of law. He was a principled originalist. He was 
loyal to his country. By all accounts, including moving testimony from 
his children, he was devoted to his family and to his friends, 
including to Justice Ruth Bader Ginsburg, with whom he often disagreed.
  Judge Scalia's judicial philosophy was well understood when President 
Reagan nominated him to the Supreme Court in 1986. Many Senators then 
opposed his judicial approach, but in an echoing indictment of today's 
Senate and its partisanship, 30 years ago the U.S. Senate confirmed 
Justice Scalia 98 to 0--a vote that testifies to Justice Scalia's 
qualifications and to the integrity of Members of this body who 
disagreed with his vision of the Constitution but, exercising their 
constitutional duty, refused to withhold their support for a qualified 
nominee.
  Here is what article II, section 2, clause 2 says about our and the 
President's duty: The President ``shall nominate, and by and with the 
Advice and Consent of the Senate, shall appoint . . . Judges of the 
supreme Court.''
  When a vacancy arises, the President shall nominate a replacement and 
the Senate shall advise and consent by voting on that nominee. That is 
what the plain language of the Constitution requires, and that is what 
Presidents and the Senate have done throughout our history. That is 
why, in the past 100 years, the Senate has taken action on every single 
Supreme Court nominee--even those made during a Presidential election 
year. Throughout our history, there have been at least 17 nominees 
confirmed by the Senate in Presidential election years. The last of 
these was Justice Kennedy in 1988.

[[Page 2657]]

  This history reveals that when the chairman of the Judiciary 
Committee said last week that ``[t]he fact of the matter is that it's 
been standard practice over the last 80 years to not confirm Supreme 
Court nominees during a presidential election year,'' he was incorrect. 
The fact of the matter is that since the founding of this country, the 
Senate has done its job even in an election year. In fact, during one 
election year, the Senate voted to confirm not just one but three 
Justices to fill vacancies on the Court. The President was none other 
than George Washington, and he was in the fourth year of his second 
term when that happened. That Senate included some of our Founders, 
delegates to the Constitutional Convention. But, come to think about 
it, what did they really know about the Constitution?
  On that subject, by the way, it has been incredible in the truest 
sense of the word to hear people--Senators and even candidates for 
President who claim to be, as Justice Scalia surely was, constitutional 
originalists or textualists--willfully ignore the plain meaning of the 
Constitution in favor of this so-called standard practice. That is not 
a form of constitutional interpretation with which I am familiar, but 
it seems to be guiding the majority leader and the chairman of the 
Judiciary Committee away from the text they claim to revere. They wrote 
together in the Washington Post:
  It is today the American people, rather than a lame-duck President 
whose priorities and policies they just rejected in the most-recent 
national election, who should be afforded the opportunity to replace 
Justice Scalia.
  I have a chart. I redlined the actual words of the Constitution with 
the claim of the majority leader and the chairman of the Judiciary 
Committee. We can see they bear no relationship to one another. In 
fact, only seven words--the black words--remain from the original 
constitutional text, including in those seven words a conjunction, a 
definite article, and a preposition--otherwise known as ``and,'' 
``the,'' and ``of.''
  Oh, and by the way, if we want to talk about a real standard 
practice, the President becomes a lameduck only after the election that 
is coming up and only until the inauguration.
  When we look at the history, it is telling that, unlike almost all 
our other work, the Senate's consideration of Supreme Court nominees 
has been remarkably expeditious. On average, the Senate has voted 70 
days after the President's nomination. When Justice Scalia died, 342 
days remained in the President's term--nearly a full quarter of his 
final term in office. Why has the Senate, notorious for its glacial 
slowness, historically acted with such deliberate speed when it comes 
to our consideration of Supreme Court Justices?
  I suspect there are three principal reasons: first, the 
constitutional clarity that commands us; second, the unique nature of 
the responsibility--no one else, including the House of 
Representatives, can exercise it; and third, the essential importance 
of the Supreme Court's composition.
  With respect to the Supreme Court's composition, no less of an 
authority than Justice Scalia himself explained it well. Asked to 
recuse himself from a case involving Vice President Cheney, Justice 
Scalia rejected the suggestion that he should ``resolve any doubts in 
favor of recusal.'' He observed that such a standard might be 
appropriate if he were on the court of appeals, where his ``place would 
be taken by another judge, and the case would proceed normally. On the 
Supreme Court, however, the consequence is different: The court 
proceeds with eight Justices, raising the possibility that, by reason 
of a tie vote, it will find itself unable to resolve the significant 
legal issue presented by the case.''
  Justice Scalia then quoted the Supreme Court's own recusal policy 
observing that, ``[e]ven one unnecessary recusal impairs the 
functioning of the Court.'' If even one unnecessary recusal impairs the 
Court, imagine what a 14-month vacancy would do. Imagine if, in 2016, 
we had a repeat of 2000, when the Supreme Court decided Bush v. Gore, 
except with only eight Justices on the bench. Imagine the 
constitutional crisis our Nation would have to endure.
  I know it has become fashionable for Washington politicians to tear 
down rather than work to improve the democratic institutions that 
generations of Americans have built. But to impair so cavalierly the 
judicial branch of our government is pathetic. It is a standard one 
would expect of a lawless nation, rather than a nation committed to the 
rule of law. It is the behavior of a petty kangaroo court, not of the 
U.S. Senate. And it threatens to deny justice to millions of Americans 
in the name of petty politics. It is time for the Senate to do its job, 
as every Senate before us has done.
  I am not asking my colleagues to support the nominee. That is a 
matter of conscience for each of us. But what is unconscionable is that 
the majority, if it keeps its word, will have no hearing, will hold no 
vote, and refuse even the courtesy of a meeting with the President's 
nominee.
  Speaking of doing our job, in view of the seriousness of the Court's 
nomination, we should reconsider the majority's proposed 7-week summer 
recess for the Senate. In July and August alone, we are barely in 
session for 8 days. Unlike our responsibility to vote on Supreme Court 
nominees, the Senate schedule is not enshrined in the Constitution. It 
is set by the majority.
  In that connection, I am glad to invite any of my colleagues to my 
office to watch a video of a constituent of mine whom I met 2 weeks ago 
in Pueblo West. She manages a retail store and struggles every month to 
keep it going. Unlike the Senate, she has 22 vacation days a year, not 
a month. Instead, she works a second job to pay for childcare so she 
can keep her main job. Millions of Americans are watching the Senate 
take the entire summer off and claim there isn't time to do our job. 
That doesn't meet the standard of a great nation or a great 
parliamentary body. What is worse is that this whole charade has become 
an extension of playground politics, the childish pettiness that has 
metastasized in this Presidential primary season.
  How far have we drifted from our simple constitutional obligations 
when one side refuses to even meet with any prospective nominee? What 
message does that send to the people of Colorado and across the 
country? Where I come from, taking your ball and going home isn't 
acceptable behavior on the playground. How could it possibly be 
acceptable in the U.S. Senate?
  Senate greatness, the national interest as a legislative guide, 
maturity, and comity will not be restored overnight or with a single 
decision. It has taken far too long for us to travel down this 
destructive road to deadlock, ideological rigidity, and bitter 
partisanship for restoration of greatness to the Senate to occur 
quickly, but we should begin--we must begin, and we can begin--with our 
treatment of some of our most serious, even sacred duties: the 
confirmation of the next Justice of the Supreme Court.
  We are not here to pacify a political base or satisfy one or more 
special constituencies or rally our political parties. We are here to 
elevate our Republic, to make it a beacon for the world, to demonstrate 
how mature representatives of sovereign States govern a mature nation.
  This Supreme Court nomination is not a test of strength between the 
executive and legislative branches. It is a test of our strength as 
leaders with an honorable history and a heritage of wisdom and 
maturity. How we manage our constitutional duty to provide serious 
consideration and deliberation to a rare appointment to the Nation's 
highest judicial office will determine whether we deserve the respect 
of Americans who rightly expect us to exhibit dignity, mutual respect, 
and wisdom on their behalf.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. CASEY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CASEY. Mr. President, I, too, rise this evening to discuss the 
vacancy on the Supreme Court and the need for

[[Page 2658]]

the Senate to do its job and give fair consideration to any nominee 
made by President Obama to fill this seat on the Supreme Court. Many of 
my Republican colleagues have vowed to block any nominee out of hand, 
and every single Republican member of the Judiciary Committee has 
likewise vowed to refuse any nominee a fair hearing. The Senate 
majority leader, along with several other Republican Senators, went as 
far to say they would not even meet with the nominee. I am not sure I 
ever heard anything like that in my 9 years in the Senate, going on 10. 
This is inconsistent, totally inconsistent with our duty as U.S. 
Senators.
  Let me start tonight by saying to my Republican colleagues, 
respectfully: Do your job. Do your job, consider this nominee, and then 
vote whichever way you want.
  We know the Supreme Court cannot permanently function as the 
Constitution intends with only eight members. Last week I asked 
questions of a panel of experts, constitutional scholars, including 
Georgetown law professor Peter Edelman at a steering committee hearing 
in the Senate. These constitutional experts confirmed that because 
split decisions defer to the holding of the lower court, it is entirely 
possible we could see a string of split decisions that would undermine 
the primary purpose of the Supreme Court; that is, to resolve 
differences in the opinions coming out of the various circuit courts 
across the country.
  This is no doubt why the Constitution provides specific instructions 
on filling Supreme Court vacancies. Article II, section 2 of the 
Constitution states, in part, ``[The President] shall nominate, and by 
and with the Advice and Consent of the Senate, shall Appoint . . . 
Judges of the Supreme Court.''
  In both instances, the word ``shall'' is used. There is no 
equivocation. It doesn't say ``shall appoint at a certain time in a 
presidency'' or ``may appoint.'' It is very clear from the Constitution 
what the Senate must do and what the President must do.
  Barack Obama is the President of the United States. According to the 
Constitution, in the event of a vacancy on the U.S. Supreme Court, the 
President of the United States shall nominate a replacement. Nothing 
more needs to be said to counter the, what I would argue, outrageous 
calls for the President to refrain from nominating a replacement simply 
because his 323 days left in office are fewer than 365 days. To refrain 
would violate the letter of the Constitution.
  Republican Senators, for whatever reason, seem to disagree with the 
original intent of the Framers in this situation. Often those same 
Republican Senators come to the floor and make floor statements 
inciting the Constitution, but now they would completely ignore a 
constitutional directive.
  The Constitution is also clear with respect to the Senate's duty to 
advise and consent on the President's nominee. No sincere reading could 
lead to the conclusion that the Senate would be within its rights and 
upholding its responsibility if it refused any potential nominee fair 
consideration. My Republican colleagues argue they are absolved of 
their responsibility to give fair consideration to a nominee simply 
because the Senate is constitutionally allowed to withhold its consent.
  That is one argument. It doesn't make sense, but that is the argument 
they make. The other argument is that ``we should let the American 
people decide'' by refusing to consider any nominee until the next 
President takes office. This denies precedent. Justice Kennedy was 
confirmed in the last year of President Ronald Reagan's final term 
under a Democratic Senate, and the Senate has confirmed 17 Supreme 
Court nominees in Presidential election years.
  This point of view also neglects the obvious fact that the American 
people already decided in twice electing Barack Obama to be our 
President. Both the President and his office deserve to be treated with 
respect. Denying the President's legitimate authority to nominate a 
candidate for Supreme Court is more than just an irresponsible attempt 
to score political points; it is a distortion of the separation of 
powers unprecedented in modern times.
  Senate Republicans have not been granted authority to prematurely 
terminate Presidential powers. They have not been granted that 
authority. The Senate has taken action on every Supreme Court nominee 
in the last 100 years, regardless of whether the nomination was made in 
a Presidential election year, and not since the Civil War has the 
Senate taken longer than a year to fill a Supreme Court vacancy. These 
nominees have always been seen as entitled to timely consideration as 
well. Since 1975, the Senate has taken an average of just 70 days from 
the date of nomination to the date of confirmation.
  Like many Senators here--virtually every Senator who serves in this 
body receives mail all the time from our constituents. On this issue, I 
have received thousands of letters urging the Senate to fulfill its 
duty and give fair consideration to the Supreme Court nominee that the 
President chooses.
  One particular letter came from a woman by the name of Jane from 
Southeastern Pennsylvania, a community outside of Philadelphia. The 
letter Jane sent me was profound in its simplicity. Jane said that 
having an understaffed Court would be ``unfair to the process of 
justice.''
  Jane's words, not mine. A fully functioning Supreme Court is not 
about obscure details of Senate procedure to Jane. It is about 
something more than that. To her, one of my constituents, it is also 
not about who said what 10 years ago, nor is it about Presidential 
politics. It is about something else. Access to justice is what matters 
to Jane. It is what should matter to every Senator.
  Jane ended this letter she sent me with a reminder that I will repeat 
in the hope that my Republican colleagues will take it to heart, as I 
did. Jane said the ``opportunity to take part in a Justice's nomination 
is a privilege and deserves respect.''
  I agree. Consideration and casting a vote regarding a Supreme Court 
nominee nominated by the President of the United States to serve as one 
of only nine Justices on the Supreme Court, you bet, that is a 
privilege and it deserves respect.
  To my Republican colleagues, I say, again, do your job, as I must do 
my job, and give this duty that you have--the duty to consider and to 
vote on a Supreme Court nominee--this rare privilege, the respect it 
deserves.
  Mr. President, I yield the floor.

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