[Congressional Record (Bound Edition), Volume 162 (2016), Part 3]
[Senate]
[Pages 3312-3314]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   FILLING THE SUPREME COURT VACANCY

  Mr. LANKFORD. Mr. President, upon waking this morning, like a lot of 
other people did, I put on the news. About midway through the morning, 
about 7 a.m., a bulletin came out that the President had selected a 
nominee for the Supreme Court. Newsworthy.
  At about 7 a.m., the email came out that said: ``I've made my 
decision.''
  At 7:07 this morning, White House Legislative Affairs circulated a 
notification to all those folks on Capitol Hill, including our office, 
from President Obama that stated this fact: ``We've reached out to 
every member of the Senate, who each have a responsibility to do their 
job and take this nomination just as seriously.''
  Well, this Senator thought that was very interesting because we 
hadn't received a notification.
  At 7:14 a.m., 7 minutes later, the White House Legislative Affairs 
Office emailed my chief of staff with an attachment of the 7:07 a.m. 
email from

[[Page 3313]]

the White House notifying that they had this. So when my counsel called 
over to the White House Counsel and said: You stated earlier this 
morning that you contacted our offices--``you have reached out to us'' 
was the term--they clarified later in the morning: Well, that email we 
sent after we said we contacted you was really the contact that we 
meant to send earlier.
  This was quite a morning for us. It is again the same doublespeak we 
received from the White House. When he said that they had reached out 
to all Members of the Senate, that actually means they had sent us an 
email after they had sent the American people an email saying they had 
made a decision. But even that email didn't say who it was.
  Here is the challenge. It is a constitutional responsibility here, 
and it is extremely important that all of this is done right. It is 
extremely important that article I, the legislative branch, and that 
article II, the White House, agree on a Supreme Court nominee because 
article I and article II select article III judges to the Supreme 
Court.
  A month ago, the U.S. Senate--the Members of the majority party 
notified the White House and the American people that we wanted to 
follow the same historical precedent that has been followed for 
decades, saying that in an election year, we would not appoint someone 
to the Supreme Court. This is not a new policy; it is a policy that has 
been around for a very long time. In fact, in 1968, when Democrats had 
the Senate and a Democrat, LBJ, was in the White House, the Democrat, 
LBJ, wanted to be able to appoint a Supreme Court nominee, and 
Democrats in the Senate blocked someone from their own party from 
putting up a Supreme Court nominee because it was an election year, and 
they held it. It has happened over and over again.
  In fact, it has been interesting, because on this floor I heard 
numerous folks step up and say: This is unprecedented. This is new. 
This has never happened before.
  The problem is that all of us know the history. It is the same 
history all of us look at.
  The Washington Post this morning even put out a piece identifying 
this basic issue. They occasionally do what has been called the 
Pinocchio test, and this morning they identified multiple different 
Democratic Senators who have spoken on this floor saying things such as 
``Republican Members met behind closed doors to unilaterally decide, 
without any input from this committee, that this committee and the 
Senate as a whole will refuse to consider any nominee. It's a 
dereliction of our constitutional duty.''
  Another statement: ``The Senate shall advise and consent by voting on 
that nominee. That is what the plain language of the Constitution 
requires.''
  Over and over again this has come up.
  The Washington Post went back and researched and did an extensive 
piece detailing all the real history here of Supreme Court nominees, 
and they ended with this statement: ``[But] the Senate majority can in 
effect do what it wants'' to do, as it has historically, ``unless it 
becomes politically uncomfortable. Democrats who suggest otherwise are 
simply telling supporters a politically convenient fairy tale.''
  The Washington Post gave the Democrats who made all these statements 
about the Republicans doing something unprecedented in shutting down 
this process a whopping three Pinocchios in their test in the 
Washington Post this morning.
  This is not something new or radical; this is consistent. Quite 
frankly, the Constitution--article II, Section 2--sets up a 50/50 
proposition for the selection of Supreme Court Justices. The White 
House has the first 50 percent to make that nomination, and the Senate 
has the second 50 percent in that we have what is called advice and 
consent, and that is choosing the time and person in the process. Is 
this the right time to do this nominee? Is this nominee the right 
person? That is advice and consent.
  It is not new for the White House and the Senate to disagree on this. 
George Washington couldn't even get some of his nominees through the 
very first Senate, and he personally came over to the Senate, bringing 
his nominee, and said: I want my nominee to have a hearing. And the 
very first Senate, with the very first President--the very first Senate 
sent George Washington away and said: We are not going to hear it 
today. It is the wrong time and maybe the wrong person. We haven't 
decided yet.
  This is an ongoing process. This Senate has determined, as it has 
many times, that an election year is the wrong time to have a departing 
President choose a Supreme Court nominee.
  As many folks have said over and over again, this is not only old 
history in the United States, it is recent history. At that time, 
Senator Biden, who was the chairman of the Judiciary Committee, said on 
this floor in 1992:

       The Senate, too, Mr. President, must consider how it would 
     respond to a Supreme Court vacancy that would occur in the 
     full throes of an election year. It is my view that if the 
     President goes the way of Presidents Fillmore and Johnson--

  Referring to LBJ--

     and presses an election year nomination, the Senate Judiciary 
     Committee should seriously consider not scheduling 
     confirmation hearings on the nomination until after the 
     political campaign season is over.
       It would be our pragmatic conclusion that once the 
     political season is underway, and it is, action on a Supreme 
     Court nomination must be put off until after the election 
     campaign is over. That is what is fair to the nominee and is 
     central to the process. Otherwise, it seems to me, Mr. 
     President, we will be in deep trouble as an institution.
       Others may fret that this approach would leave the Court 
     with only eight members for some time, but as I see it, Mr. 
     President, the cost of such a result, the need to reargue 
     three or four cases that will divide the Justices four to 
     four, are quite minor compared to the cost that a nominee, 
     the President, the Senate, and the Nation would have to pay 
     for what would assuredly be a bitter fight, no matter how 
     good a person is nominated by the President, if that 
     nomination were to take place in the next several weeks.

  Even Senator Reid in 2005 said:

       The duties of the Senate are set forth in the U.S. 
     Constitution. Nowhere in that document does it say the Senate 
     has a duty to give Presidential appointees a vote.

  This is not new; it has just become politically expedient to bring 
this up. It is not even new in the media. It was interesting to be able 
to see a comment in the New York Times from 1987 when the New York 
Times wrote an editorial about what happens if a President in his final 
term wants to be able to appoint a nominee with a Senate majority from 
the other party. Well, at that time in the previous election, the White 
House had a President who was a Republican, Ronald Reagan, and the 
Senate had changed over to the Democrats in the previous election. The 
New York Times wrote this about a Supreme Court selection process:

       The President's supporters insisted vehemently that having 
     won the 1984 election, he has every right to change the 
     Court's direction. Yes, but the Democrats won the 1986 
     election regaining control of the Senate, and they have every 
     right to resist.

  That was true then for the New York Times, that is true now, and we 
will see if they stay consistent as a newspaper standing from the exact 
same principle decades later--not new, not different.
  The fact is, the Supreme Court is still working, still hearing cases, 
still going through the arguments, and still releasing opinions. 
Nothing has changed over there. The work is still continuing in the 
U.S. Senate. We are still hearing legislation. We are voting on 
legislation. We voted on a confirmation this week to the Department of 
Education. We are still working through nominations. We are still 
working through legislation. Nothing has changed on that. The decision 
was made that this Senate will not move during this election year.
  It is interesting. I had a telephone townhall this Monday with 
individuals across my State, with thousands of people on the line. We 
asked a simple question about what should happen in this process 
dealing with the Supreme Court--this is before a nominee was even 
announced--and 71 percent of the people on our calls said the next 
President and the American people should choose who the next Supreme 
Court Justice will be.
  I will submit that we should allow the people to decide this, that 
when

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they decide the Presidential election this November, they are also 
determining the direction of the Supreme Court in the days ahead.
  I don't want us to lose track of the basic facts here, but I also 
want us to stay focused. This Senate cannot get distracted with bitter 
fighting over something that we resolved a month ago and that will 
remain resolved. We are not going to move.
  We have a lot of budget issues to deal with. We have appropriations 
bills that will come up in the days ahead. I would submit that one of 
the biggest things we can do in the Senate is to also reform the budget 
process, to stay focused on things that are really going to matter long 
term for us, because this issue with the Supreme Court is already 
resolved. We need to find ways to be able to eliminate the budget 
gimmicks that are in the budget process to get a long-term view, to 
make sure there is not this playing with the system in this 10-year 
window, and to deal with biennial budgeting to get a better prediction 
of where we are going in the days ahead. We need to find a way to stop 
government shutdowns and the constant threats of government shutdowns 
because they do nothing but hurt us. These are things we can work on 
and work on together to keep us on focus.
  The Supreme Court issue is settled. It is not going to move. Let's 
find the things that we can agree on, that we can work on, and continue 
to work on those things together.
  I yield the floor.
  

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