[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 2836-2837]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. COTTON. Mr. President, there is a vacancy on the Supreme Court, 
and this Chamber and the American people must fully understand what is 
at stake in choosing the person to fill that vacancy. For a generation, 
Justice Nino Scalia was the conservative heart of the Supreme Court. 
Whoever takes his seat will not replace him because there is no 
replacement, but his passing has the potential to dramatically shift 
the delicate balance of the Court. Should Justice Scalia be replaced by 
a philosophically liberal Justice, the implications for the rights of 
Americans and the direction of our Nation would be profound.
  A liberal Justice may mean that the individual right to keep and bear 
arms will be nullified and laws that deprive Americans of the means to 
protect themselves and their families will proliferate. A liberal 
Justice may mean that the President's extraconstitutional Executive 
order to grant amnesty to

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illegal immigrants will be upheld, trampling the separation of powers 
and the will of the American people. A liberal Justice may mean that 
President Obama's plan to destroy America's coal industry will survive, 
destroying thousands of jobs and steady income for American families.
  A liberal Justice may mean that the government will be empowered to 
force people of faith to violate their deeply held beliefs to subsidize 
abortifacients they abhor, and these are only the issues we can 
foresee. Novel issues that strike at the core of our constitutional 
order will continue to arise and how they are settled will hinge 
greatly on the next Justice. Because so much depends on who the next 
Justice is, we cannot rush into this decision. Because the law may take 
such a dramatic turn, the Members of this Chamber must first get the 
input of the American people on what the direction of our country 
should be, and because the next Justice will guide American law for the 
next generation, the Senate should not subordinate our constitutional 
responsibility to advise and consent on a Supreme Court nominee to a 
lameduck President with a stale mandate.
  This is the way forward that the majority leader and Chairman 
Grassley have charted, and it is the right one. After all, we have an 
election in November. In a few short months, we will have a new 
President and new Senators who can consider the next Justice with the 
full faith of the American people.
  Why would we cut off the national debate about this next Justice? Why 
would we squelch the voice of the people? Why would we deny the voters 
a chance to weigh in on the makeup of the Supreme Court? There is 
absolutely no reason to do so or at least no principled reason to do 
so. That is why no Congress in our history has confirmed a Supreme 
Court nominee of a lameduck President of either party for a vacancy 
that arose in an election year.
  Abiding by this practice this year is even more pressing. Some of my 
Democratic colleagues argue that the American people have already 
weighed in on the Supreme Court by reelecting President Obama in 2012, 
but I will remind those who make this argument that the Constitution 
requires two institutions, the President and the Senate, to agree upon 
a new Justice, and in 2014 the voters overwhelmingly chose to send 
Republicans to the Senate, making clear their dissatisfaction with this 
President's cavalier attitude toward the Constitution and his duty to 
execute the laws as written. If the 2014 election meant anything, it 
meant that Americans do not want this President to determine alone the 
course of American law for a generation in the Supreme Court. When 
Arkansas elected me in 2014 to represent them, they sent me to 
Washington with the mandate to act as a check on the President, and I 
will carry out that mandate.
  Many of my Democratic colleagues have come to this floor to demand 
that the Senate's longstanding practice of declining to confirm Supreme 
Court Justices in an election year be discarded and a nominee 
considered right away. Perhaps the most impassioned of these pleas come 
from the senior Senator from Nevada; that the minority leader would 
wish to discard a longstanding practice of the Senate--particularly one 
related to the judicial nominations--is not a surprise. He was, of 
course, the person in 2013 who detonated the so-called nuclear option, 
discarding the 60-vote threshold for appellate and district court 
judicial nominees that existed in this Chamber for 200 years. He did so 
in order to steamroll the institutional rights of the minority party 
and pack the lower courts with as many liberal Obama nominees as 
possible.
  In terms of dignity and public esteem, such as he had, that ill-
considered move cost the minority leader dearly. He could only exercise 
the nuclear option if he flip-flopped on his prior vehement opposition 
to it. In 2005, the minority leader stood steadfastly against the 
nuclear option when it served his political interests. He called the 
nuclear option wrong, illegal, and even un-American. He was--to adapt a 
familiar saying--against the nuclear option before he was for it.
  In the current debate over filling Justice Scalia's seat, we are 
seeing the minority leader perform a similarly brazen flip-flop, not 
that we should be surprised by that. Today the minority leader claimed 
that the Constitution compels the Senate to immediately take up any 
nominee President Obama sends our way, but 10 years ago, again, he sang 
a much different tune. The minority leader came to this very same floor 
to speak passionately in defense of the constitutional prerogative of 
the Senate to defer a vote on the President's Supreme Court pick. He 
forcefully stated that nowhere in the Constitution does it say the 
Senate has a duty to give Presidential nominees an up-or-down vote. It 
says appointments shall be made with the advice and consent of the 
Senate, and that is very different than saying that every nominee 
receives a vote.
  What has changed in the 10 years since the minority leader uttered 
those words? Well, of course, merely the politics of the situation.
  I ask, if the current President were a Republican, would the minority 
leader be taking the position he is today?
  If the current President were not a fellow Democrat, would the 
minority leader still be inclined to trash the constitutional 
prerogatives of the Senate and abandon its longstanding customs?
  In light of what you might call the diversity of the minority 
leader's views over time, I think it is understandable that questions 
have been raised about the sincerity of his position. In the quiet 
moments following the rambling jeremiads that the minority leader 
directs at Republicans on the Senate floor, I think my colleagues might 
be forgiven if they entertain the thought that the principled ground on 
which he claims to stand is slightly less than firm.
  In the coming months, there is much work for Congress to do. We must 
pass a bill to fund and rebuild our military. We must continue to 
improve the conditions for wage growth and the creation of new jobs. We 
must conduct stringent oversight to rein in the excesses of the 
President on a quixotic pursuit of a legacy, but with regard to a 
Supreme Court nomination, the only task for this Senate is to wait 
passionately and listen to the American people.
  I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. THUNE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cotton). Without objection, it is so 
ordered.

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