[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 2809-2810]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. DURBIN. Mr. President, several weeks ago, the untimely passing of 
Supreme Court Justice Antonin Scalia created a vacancy on the Supreme 
Court, which now has only eight Justices. It called into question the 
constitutional responsibility of the President of the United States 
when such a vacancy exists and the constitutional responsibility of 
this Senate.
  This morning in the Washington Post, there was speculation about six 
possible nominees the President could send to the Senate. It was 
speculation in the paper, and we don't know if any one of those would 
actually be the nominee suggested by the President, but it is very 
obvious--and having spoken with the President personally on this issue, 
I know he is carefully weighing the options.
  Why will the President move forward on this nomination? Because the 
Constitution requires it. In article II, section 2, it says the 
President shall appoint a nominee to fill a vacancy on the U.S. Supreme 
Court--shall; not may, shall appoint--and the Senate shall perform its 
advice and consent duties with respect to that nomination. So there are 
two constitutional responsibilities: for the President to suggest a 
nominee and for the Senate to act on that nominee.
  There have been instances in American history where argument could be 
made that that constitutional responsibility should be ignored or at 
least delayed. One that comes to mind dates back to 1942. On October 3, 
1942, a vacancy arose on the Supreme Court of the United States. On 
that day, Justice James Byrnes on the Supreme Court resigned his seat 
to become Director of the Office of Economic Stabilization in the 
Roosevelt administration.
  On January 11, 1943, President Roosevelt nominated Wiley Rutledge, a 
Kentucky native and former dean of the University of Iowa College of 
Law, to fill that vacancy. At this point in 1943, the United States was 
fully engaged in the Second World War. When the President sent up this 
nomination, battles were raging in Europe, Asia, Africa, and in the 
Atlantic and the Pacific. It was unclear whether we would prevail or 
the enemy would prevail. Each day brought alarming, stunning news about 
developments in the war.
  Three days after making his Supreme Court nomination, President 
Roosevelt flew to Morocco to join Churchill and de Gaulle at a 
Casablanca conference on the future of the war. At this conference, the 
Allies coordinated their strategy against the Axis powers and decided 
to launch an offensive in Sicily and in Italy.
  On January 27, 1943, American bombers from the Eighth Air Force 
conducted the first American air raid over Germany. On January 30, 
Japanese aircraft torpedoed and sank a cruiser named the USS Chicago in 
the South Pacific. Sixty-two men lost their lives. Over a thousand 
survived due to a daring and swift rescue.
  The Nation was clearly engaged in war. There was every reason in the 
world for the President and even the Senate to say: This is no time to 
talk about a Supreme Court vacancy. Instead, the President and the 
Senate, even in the midst of World War II, understood their obligation 
under the Constitution. The Senate Judiciary Committee held a hearing 
for Rutledge on January 22, 11 days after his nomination had been sent 
to the Hill by President Roosevelt. The committee reported Rutledge's 
nomination to the floor on February 1, and he was confirmed by the full 
Senate on February 8, 1943, 28 days after his nomination.
  Mr. President, I wanted to put this set of facts on the record to 
make it clear that there is absolutely no excuse for what the Senate 
Republicans are doing with this vacancy. There is no excuse for the 
Senate Republicans to ignore their constitutional responsibility, a 
Constitution which they have sworn to uphold and defend. We are not in 
the midst of a world war; we are in the midst of a Presidential 
campaign. And that in and of itself explains why Senator McConnell, 
just hours after the announcement of the death of Antonin Scalia, made 
it clear that the Senate would not accept its responsibility under the 
Constitution to fill this vacancy on the Supreme Court.
  It is a sad reality that the Republicans have made this decision to 
leave the Supreme Court for over a year with this vacancy. When was the 
last time the Senate left the Supreme Court with a vacancy for over a 
year? It goes back to the Civil War, when we were at war with 
ourselves, with thousands being killed on a daily basis. It was in that 
turmoil that we left a vacancy on the Supreme Court for over a year.
  Now the Senate Republicans point to the turmoil of a Presidential 
election campaign as their reason for not accepting their 
constitutional responsibility. They make a vacuous argument that we 
should wait and pick a new President and let this new President, in his 
next term or her next term, fill this vacancy. Well, that is an empty 
argument because in the year 2012, in November of 2012, there was a 
Presidential election. The two major party nominees were, of course, 
President Obama running for reelection and Mitt Romney running on the 
Republican side. In that election, the American people made a clear 
choice. By a margin of 5 million votes, they reelected President Barack 
Obama, and they reelected him for a 4-year term. So it turns out that 
even in this year of 2016, Barack Obama is still the President of the 
United States. This may come as news to those on the Republican side of 
the aisle, but he was reelected for 4 years by a 5 million-vote margin, 
and their refusal to give this President due consideration of his 
nominee is a rejection of that verdict of the American people in that 
election.
  So for the first time in history, we find a nominee presented by the 
President about to come to Capitol Hill, and the promise of the Senate 
Republicans?

[[Page 2810]]

They will not even hold a hearing, will not even consider this nominee, 
and won't bring it to a vote. In fact, Senator McConnell went further. 
He said he would refuse to even meet with any nominee sent by the 
President. That is unheard of, unprecedented, uncalled for, and an 
embarrassment to this institution of the United States Senate.
  I call on the members of the Senate Judiciary Committee, on which I 
am proud to serve, to step back and reassess the letter they signed 2 
weeks ago. It was a letter accepting Senator McConnell's strategy, 
saying they would not do their job. They would, in fact, walk away from 
their job, walk away from their constitutional responsibility. I would 
hope they would realize they are leaving a mark in history which is 
indefensible, a mark in history which is unprecedented, and one which 
sadly will leave the Supreme Court with only eight Justices.
  The American people have spoken. They have chosen the President. The 
President has accepted his constitutional responsibility. The Senate, 
under Republican leadership, can do no less.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Flake). Without objection, it is so 
ordered.
  Mr. BLUMENTHAL. Mr. President, I ask unanimous consent that I be 
permitted to speak for up to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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