[Congressional Record (Bound Edition), Volume 162 (2016), Part 3]
[House]
[Pages 4349-4356]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       THE SUPREME COURT VACANCY

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 6, 2015, the gentleman from Iowa (Mr. King) is recognized for 
60 minutes as the designee of the majority leader.
  Mr. KING of Iowa. Mr. Speaker, it is my privilege to be recognized by 
you to address you here on the floor of the United States House of 
Representatives.
  I come to the floor here today with an issue that I think is 
important that America have a dialogue on the topic, and some of that 
is going on. It is going on in the Presidential races across the 
country and in the coffee shops and at work, at play, at church, and 
around the country in the things that we do.
  But when a moment in history comes along that shocked a lot of us to 
the core--and that was the abrupt and unexpected loss of Justice 
Antonin Scalia, a person whom I got to know. I would like to say that I 
called him a friend. He was a person whose personality I enjoyed a lot, 
his robust sense of humor, his acerbic wit in the way that he conveyed 
his messages, especially when he wrote the dissenting opinions for the 
Supreme Court. He found himself occasionally in the minority, but I 
think he was almost always right in those constitutional decisions.
  When Justice Scalia wrote those minority opinions, he realized that--
and he just thought in advance--that the students in law school would 
have to read the dissenting opinions as well as the majority opinions.
  So he made sure when he wrote especially his dissenting opinions that 
they were engaging, they were entertaining, they were provocative, and 
they were challenging. It caused the law school students to read those 
and remember the points that Justice Scalia had made.
  That is a legacy of the 30 years of Justice Scalia that will live 
within the annals of the history of the United States of America, 
especially those who are studying constitutional law and those that are 
in law school.
  The constitutional law students around America too seldom are taught 
constitutional law out of the Constitution itself. We have a President 
of the United States who spent 10 years as an adjunct professor 
teaching constitutional law at the University of Chicago.
  I have met with a good number of the students that he taught. The 
ones that I met with, at least, said that, whenever they laid out a 
conservative principle and made a constitutional argument based upon 
those conservative principles, that then-adjunct professor Barack Obama 
would always turn that around to the activist side, to move the needle 
hard to the left.
  It is my position--and I believe it is also the position of the 
chairman of the Judiciary Committee in the House and especially the 
chairman of the Judiciary Committee in the Senate--that the 
Constitution must be read and interpreted to mean what it says. It 
would mean precisely the text of the Constitution as it was understood 
to mean at the time of ratification.
  The Constitution itself, Mr. Speaker, is the equivalent of--and I 
would say literally is--an intergenerational contractual guarantee from 
one generation of Americans to the next, to the next, to the next.
  Our Founding Fathers understood that, and they so carefully crafted 
this Constitution. The language in it reflects their convictions and 
their guarantee to each generation.
  If it were to be anything else, if it were to be a living and 
breathing document, as too many of our Justices on the Supreme Court 
and far too many on our Federal bench today, that 40

[[Page 4350]]

percent or so that will have been appointed by Barack Obama by the end 
of his term--those Justices, by and large, don't believe what I've just 
said, Mr. Speaker.
  They generally believe that the text of the Constitution is something 
that they can massage, that they can manipulate, that they can 
interpret and reinterpret to mean that which they would want it to mean 
if it were written by them today.
  Of course, the words wouldn't be the same, but the ideology that 
grows from many of these precedent decisions shows that and is proof of 
it.
  If anyone wonders, Mr. Speaker, I would take them back to the Court 
last June 24 and 25. On one day, the Supreme Court concluded that they 
could rewrite law. On the next day, the Supreme Court concluded that 
they could create not just new rights in the Constitution, but create a 
command in the Constitution.
  Now, I hope to return to that topic in a little bit, Mr. Speaker.
  What we have in front of us is this: The loss of Justice Scalia 
leaves an empty seat on the Supreme Court. It is an intellectual hole, 
not just a voting hole. But it is an intellectual hole left by the 
towering legal intellect of Justice Scalia.
  In times throughout history--there are conflicting reports--one can 
make the political argument and one can make the traditional argument 
as to whether a President should be able to make an appointment to the 
Supreme Court and have that appointment ratified and confirmed by the 
United States Senate.
  Under these circumstances that we have today--this is an election 
year, and the loss of Justice Scalia and the creation of that empty 
seat on the Supreme Court has brought about a nomination for the 
Supreme Court that has been produced by President Barack Obama, even 
though the majority party in the Senate, concurring with Majority 
Leader Mitch McConnell from Kentucky, as well as the chairman of the 
Judiciary Committee, Senator Charles Grassley, have said: We are not 
going to take up a nominee and we are not going to have hearings in the 
Senate Judiciary Committee.
  That means that we won't have a debate on the floor of the Senate for 
confirmation because they believe--and it is their prerogative to do 
so--they believe that the next Justice on the Supreme Court should be a 
reflection of the voice of the people who will go to the polls this 
coming November and an elected President of the United States who more 
accurately reflects the will of the people rather than a President who 
is a lameduck President.
  I agree with Senator Grassley and I agree with Majority Leader 
Senator McConnell that this is a decision that is too big to be made by 
people who are on the way out the door. The President is on the way out 
the door. There are Members of the Senate that are on their way out the 
door.
  We need the fresh faces that have the freshest support of the 
American people making these decisions, particularly the next President 
of the United States.
  Now, predictably, when an argument like this comes up, each side 
seeks to gain a political advantage. Yes, this is a political decision. 
It is a political decision that needs to be based on the foundation, 
however, of the Constitution and the text of the Constitution and the 
understanding of the Constitution to mean what it says and mean what it 
was interpreted to mean at the time that it was ratified.
  Our Founding Fathers gave us a means to amend the Constitution. So 
they didn't intend our Constitution to be a living, breathing document, 
as the people on the left say.
  They intended it to be fixed in place, an intergenerational 
contractual guarantee, so that my grandchildren and great-grandchildren 
and each succeeding generation can count on this Constitution meaning 
what it says.
  I have watched it distorted. I have watched it usurped by decisions 
made in our Federal courts and by our Supreme Court and a people and a 
public that will honor those decisions because they are made by the 
judges, not because they are constitutionally grounded decisions.
  So this appointment that comes before the Supreme Court--first, I 
will go to this. In our Constitution, Mr. Speaker, Article II, section 
2--the authority of the executive branch of government must be here 
somewhere.
  Article II, section 2: This is the text we are working with, Mr. 
Speaker. This is the language that governs the nomination, the advice, 
the consent, and the appointment to the Supreme Court in this fashion.
  I will read this verbatim from Article II, section 2:
  ``He''--meaning the President of the United States--this is executive 
branch authority--``He shall have power, by and with the advice and 
consent of the Senate, to . . . nominate, and by and with the advice 
and consent of the Senate, shall appoint . . . judges of the Supreme 
Court . . .''
  Now, he shall have power to nominate and, by and with the advice and 
consent, appoint judges of the Supreme Court. That is power to nominate 
and appoint by and with the consent, Mr. Speaker.
  So the language here is clear, ``by and with the advice and consent 
of the Senate.'' The advice and consent of the Senate is determined by 
the Senate. The consent of the Senate is the confirmation vote.
  The advice would be that the President is to go to the Senate and 
say: I have got an appointment here to the Supreme Court. You all know 
that. Do you have some names you would like to offer? What is your 
counsel here? Look at the makeup of the Court. What is missing? Who do 
we have on the bench today? How are they contributing? What kind of job 
are they doing in ruling upon the supreme law of the land, the 
Constitution itself, and the text of the statutes that Congress has 
passed that go before the Court for evaluation as to their 
constitutionality?
  I will go further than to suggest, Mr. Speaker. I will assert that we 
have a Court today that too often reaches outside its bounds. And if I 
had a criticism of Justice Scalia, it would be his deeper respect for 
stare decisis that I happen to see in a Justice such as Clarence 
Thomas.
  But when a decision is made by the Court, there has been essentially 
a consent of the Court to accept that decision, to build on it, rather 
than to go back and reevaluate afresh, anew from the text of the 
Constitution.
  I think we need to go back and refresh anew and take a look at the 
text of the Constitution with each decision of the Supreme Court with 
less deference to stare decisis.

                              {time}  1645

  The activists on the Court, on the other hand, are the exact 
opposite. They want to build these leftward precedents along the way so 
that, in the end, the Constitution would be obliterated.
  That is the direction that President Obama has gone. It is the 
direction he seeks to go. I would submit that I don't expect that he is 
going to be able to make an appointment to the Supreme Court that would 
reflect a Justice on the bench whose interpretation of the Constitution 
would be to the text and the original understanding and meaning of it, 
but, instead, activist judges. That is the history that he has 
produced.
  I have not evaluated Judge Garland. I don't have a comment on his 
work except that this is not the time to confirm an appointment for 
Barack Obama and let him shape this Court for the next generation or 
so. If we get this wrong, Mr. Speaker, we lose our Constitution for the 
next generation.
  No matter how astute our Presidents have been, no matter how deeply 
they have been committed to the Constitution itself, we have still seen 
that, even under Ronald Reagan, he got about half of his appointments 
to the Court right.
  We need a President coming around the pike that gets every one of 
them right. I wouldn't be happy and satisfied until all nine of the 
Justices on the Court reflected that they are traditionalists, that 
they are textualists, that

[[Page 4351]]

they are originalists in the Constitution, and that the judges that are 
coming up on the Federal bench would also meet that same standard.
  I am not in the United States Senate. We don't have a vote on the 
confirmation of appointments to our Federal courts over here in the 
House. I do serve on the Committee on the Judiciary, and this is the 
end of the 14th year that I have done that, Mr. Speaker.
  And so the voice of time and observation and reading and 
consideration and experience, especially as a member of the 
Subcommittee on the Constitution and Civil Justice of the House 
Committee on the Judiciary, yes, I have deep convictions on this issue 
and considerable experience and knowledge base on it.
  I am suggesting, Mr. Speaker, that this House of Representatives 
evaluate the arguments that I am making here and the arguments that 
Senator Grassley is making on the other side of the rotunda, and these 
arguments say we take an oath. This will be my argument.
  Mr. Speaker, we all take an oath here to support and defend the 
Constitution of the United States. So do the Justices of the Supreme 
Court take that oath to support and defend the Constitution of the 
United States. The President of the United States takes an oath to 
preserve, protect, and defend the Constitution of the United States. 
These are serious oaths.
  When you stand up before God and country and say ``so help me God,'' 
you better mean it. That means that the Constitution isn't a malleable 
document. When you take an oath to support and defend it, that doesn't 
mean you can take an oath to support and defend the Constitution as, 
let's say, amended by a Supreme Court.
  I would support and defend a Constitution amended constitutionally 
only. The Supreme Court Justices are the last people on the planet that 
ought to be engaged in amending the Constitution of the United States.
  But if I could take you back to those dates I mentioned--June 24, 
June 25, 2015--June 24, if you want to look at the calendar, is going 
to be a Thursday. That was the date that the decision came out on 
ObamaCare. That was King v. Burwell.
  That decision, Mr. Speaker, a majority opinion written by the Chief 
Justice, boiled down to this: Congress passed a law in two different 
components. I call it ObamaCare. They called it the Affordable Care 
Act.
  I have said that George Washington could not utter those words in 
referencing that legislation because it is not affordable and George 
Washington could not tell a lie. But it was actually the Patient 
Protection and Affordable Care Act.
  That long lingo threw people off. So they boiled it down to the 
Affordable Care Act. We boiled it down to ObamaCare. ObamaCare is far 
more descriptive than the Affordable Care Act and far more honest.
  But that legislation came in two packages. It was passed by hook, by 
crook, by legislative shenanigan, and that wasn't just me saying that. 
There was at least one Democrat here on the floor who used the term 
``legislative shenanigan'' in reference to the passage of ObamaCare.
  It was passed in that fashion. Yet, when it began to be implemented, 
they wrote thousands of pages of regulations that could not have been 
imagined at the time that that bill passed the floor here.
  There was a massive amount of arm twisting and leverage like this 
country has never seen. We had tens of thousands of people that 
surrounded this Capitol and pleaded: Keep your hands off of our health 
insurance. Keep your hands off of our health care. They wanted their 
freedom.
  The people who came here understood this, that the most sovereign 
thing that we have is our own soul. And the Federal Government hasn't 
figured out how to tax it, how to nationalize it, how to take it away 
from us.
  We are in control of our eternal salvation--that is our soul--and we 
manage that. Each one of us manages it. But the second most sovereign 
thing we have is our health, our skin, and everything inside it.
  Yet, this Congress, House and Senate, together with the President of 
the United States--on March 23, 2010, he signed into law the 
combination of the two bills that became ObamaCare that I said were 
passed by hook, crook, and legislative shenanigan and have their own 
constitutional problems.
  I would argue the Supreme Court at least twice has ruled outside the 
Constitution in order to get ObamaCare implemented, and one of those 
was the State exchanges.
  The statutory authority for the States to establish insurance 
exchanges under the auspices of the State exists within ObamaCare, but 
the language that empowers the States to do so does not include the 
Federal Government. The Federal Government did not have the 
constitutional authority to establish exchanges, and it needed the 
language.
  If the Obama administration had been astute, they may well have 
written into ObamaCare legislation three words, ``or Federal 
Government,'' so that the States or Federal Government would have the 
legal authority to establish the exchanges.
  The Federal Government went ahead and established exchanges within 
the multiple States that refused to do so, and the Supreme Court's job 
is to read the text of the language and rule on the text of the 
language and the law.
  But, yet, in a 5-4 decision of the Supreme Court written by the Chief 
Justice, they decided that, if the Congress really might have at that 
time passed legislation with the language in it that would have said 
``or Federal Government,'' that they would just go ahead and interpret 
that it really means: Well, okay. It was an oversight on the part of 
Congress.
  They might have slipped that in there if they had just known that 
they needed to write it in there. But it was maybe an oversight by 
staff in the middle of the night because, after all, the then-Speaker 
of the House, Nancy Pelosi, said we have to pass this legislation in 
order to find out what is in it.
  Well, she didn't say we had to pass it to find out what wasn't in it. 
But what wasn't in it was the authority for the Federal Government to 
go into the States and intervene and establish their own exchanges 
within the States. But this Obama administration did that with the 
people's tax dollars, and I will say in violation of the law.
  When it was appealed to the Supreme Court to assert just that, the 
Supreme Court ruled, well, it would have been better for the policy, in 
their judgment, if the language had been in there, ``or Federal 
Government.''
  But it wasn't in there. So they deemed it in. That is a legislative 
decision made by a 5-4 decision of the Supreme Court that came down on 
us June 24, 2015. That is appalling to me.
  I am aghast at the idea that a Supreme Court could be ruling upon the 
supreme law of the land and come down with a decision that they are now 
the legislative body to completely alter legislation that was the due 
decision of, I think, an erroneous decision, but a majority decision of 
the United States Congress.
  Now, in any other world, in any other time, in any other kind of a 
decision that would come down, a Supreme Court could, should, has, and 
would justly send it back to Congress with this directive: We can't 
find in here the language you may have wanted to pass. If you want this 
language in this bill, Article I says all legislative authority is 
vested in the Congress of the United States.
  So the only right choice for a Supreme Court faced with this kind of 
a decision was to not remand it back to a lower court for a decision, 
essentially and, I will say, virtually, remand it to Congress and say 
to Congress: If you want to have federally established exchanges within 
the States, you have to pass a law that says so.
  That is not what they did. They decided that they could change the 
law over at the Supreme Court building.
  Now, if that can be done, if the Supreme Court of the United States 
can take on the trappings of a legislature and become a super 
legislature--and, by the way, they are appointed for life, for life.

[[Page 4352]]

  So there is no consequence for people who can't be voted out of 
office. You can't even replace them for the duration of their life.
  But they made the decision that they were the super legislature, and 
5-4, under King v. Burwell, they put three words de facto, three words 
into the ObamaCare legislation, ``or Federal Government.''
  Now, I am barely up off the floor from reading this on that Thursday, 
June 24, 2015, and, as the Sun comes up on me on the following morning, 
I am contemplating: What do we do about this? How does Congress react? 
What should the public messages be in one part?
  At 9:00 in the morning in Iowa, 10:00 D.C. time, I am rolling into 
St. Anne's Catholic Church in Logan, Iowa, to do an event there with a 
visiting priest and with the parish there at St. Anne's in Logan, Iowa.
  And who merged together--at the same time we pulled in and parked 
essentially simultaneously--was the vehicle of former Senator Rick 
Santorum, one of the leading constitutionalists in this country, one of 
the strongest people in defense of life and defense of marriage and 
defense of the Constitution that we have seen--and I will say within a 
generation--with deep convictions, a clear understanding, and a very 
articulate voice.
  As we got out of our vehicles, each of us had been listening to the 
news report of the decision that came down from the Supreme Court that 
day. That was a decision on marriage. I pronounce it Obergefell 
decision.
  But that decision on marriage that came down on Friday, June 25, 
2015, where the Supreme Court--I mentioned in the earliest part of my 
conversation, Mr. Speaker, the Supreme Court would legislate from the 
bench, and the Supreme Court not only created what would be a new right 
from the bench, but they created--they manufactured out of thin air a 
command, a command to every State in the Union.
  That command that they created without any constitutional basis 
whatsoever was to the States this: If you are to have civil marriage in 
your State, it shall include same-sex marriage on equal standing with a 
man and a woman joined together in matrimony. No matter what your State 
laws, no matter what your State constitutions say, we usurp it from the 
Supreme Court with an edict, a directive, a command, that you shall 
conduct same-sex marriages on equal standing and you shall recognize 
same-sex marriages from other States with reciprocity as well.
  Now, this is not a decision that could have been made by the United 
States Congress and not had it challenged. And I would say the Congress 
does not have the authority to impose same-sex marriage on the rest of 
the country.
  If we had had the audacity to make such a decision in the House and 
the Senate and signed by the President, somebody would take that to the 
Supreme Court and say: Show me the enumerated power that Congress has 
to regulate marriage in such a fashion.
  I would argue that we don't have that constitutional authority, but I 
would submit that the States do have. The States under the Ninth and 
Tenth Amendment do have the authority.
  If they decide to establish same-sex marriage in their State 
legislatures and they can get their Governor to sign the legislation or 
override a veto, any one or any combination of or all of the States 
could pass a same-sex marriage law, I would respect that as a 
constitutional decision made by we, the people, whether it is we, the 
people of Iowa, or we, the people of another State, or all other 
States, for that matter, but not the Supreme Court, Mr. Speaker.
  The Supreme Court of the United States didn't just manufacture a 
right, they created a command to the States, and that is 
constitutionally offensive to me to read a decision like that.
  By the way, I had a preview of it because the State Supreme Court in 
Iowa did just that in about 2009 and some of us dug down into that 
decision. That was about a 63- or 64-page decision, and it was an 
appalling, sloppy piece of legal work that was written with, I believe, 
a conclusion. And then they had to go through a lot of legalistic and 
mental and logical contortions to get to their conclusion.
  I would invite anybody to read that decision. I believe that an 
objective reading of that decision brings them down with the same 
characterization that I would have.
  I want judges who read the Constitution and literally interpret the 
Constitution. And the judges who understand, as Justice Scalia did, 
that when he makes a decision based on the Constitution and the letter 
of the law--if he is uncomfortable with the policy decision that 
emerges with that, that tells him that he can be very comfortable with 
the constitutionality of the decision that he has made because, on 
policy, he disagrees, but he knows that he is not there to determine 
policy.
  He is there, as Justice Roberts said in his confirmation accurately, 
I think, to call the balls and the strikes, not to be the one that is a 
player in that arena.

                              {time}  1700

  So we have Senator Chuck Grassley, the man who is standing in the gap 
and a man who is the chairman of the United States Senate Judiciary 
Committee who has the control over the agenda of that committee and 
decides whether there will be hearings before the Judiciary Committee 
on this appointment of the President or whether there will not be--and 
he has said in conjunction with Majority Leader McConnell, that there 
will not be hearings in the Judiciary Committee. And Chuck Grassley is 
right, Mitch McConnell is right.
  This argument gets cast back and forth--and it will be cast back and 
forth--and the amperage of this will go up and up and up between now 
and the election. They will turn that into a political football.
  For me, I say: Take Chuck Grassley's word to the bank and we are done 
talking about it. But they want the political leverage. So they will be 
pressuring Chuck Grassley.
  Mr. Speaker, here is a little bit of what is going on. Here is my 
public position on the issue. And it had to do with a press conference 
where I said, ``There is no reason to have that hearing. The simple 
answer to it is this: It's inconceivable that he''--President Obama--
``would nominate someone to the Supreme Court who believes in the 
Constitution. If we're going to save our Constitution, we can't have an 
Obama nominee on the court.''
  Mr. Speaker, that is maybe a blunt statement, but I have watched the 
history and the pattern of Barack Obama and appointments that he has 
made to the court. There is no question that they are liberal, leftist 
activists who want to come down with decisions that are more in the 
direction of the leadership of the ideology on the left and with very 
little deference to the Founding Fathers and anchored to the text of 
the Constitution.
  And I have given what the Constitution says about nominations by 
advice and consent. Again, the President ``shall nominate, and by and 
with the Advice and Consent of the Senate, shall appoint.'' In other 
words, the President can't make an appointment to the Supreme Court 
unless he has the advice and consent of the Senate.
  Now, advice could be fairly loosely interpreted, but consent is a 
different story. That takes a vote to do that--judges to the Supreme 
Court. That means the President nominates, the Senate can provide the 
advice before the nomination--that would be the best--and perhaps some 
advice after. But the consent of the Senate is required or there won't 
be a seat in the Supreme Court that is filled by Barack Obama.
  Now, I point out also that there is nothing in this Constitution that 
says that there has to be nine Justices on the Supreme Court. This is 
where the House could actually weigh in on this, if we decide to do 
this. The Constitution of the United States requires that the Congress 
establish a Supreme Court. And then it is up to our discretion as to 
what other Federal court we might want to establish.
  Mr. Speaker, I actually had this debate with Justice Scalia. One of 
the

[[Page 4353]]

things I enjoyed about him was little banters along the way and how 
these arguments came out. And I made the point to him that the 
Constitution only requires that the Congress establish a Supreme Court, 
not all the other Federal courts. So we could--Congress--abolish all of 
the Federal districts that are there. We could say there will be no 
Federal courts. It will all be handled through the Supreme Court 
itself. That is not a practical application, but it is from a 
constitutional perspective.
  Then I said to Justice Scalia that we could eliminate all the Federal 
courts except the Supreme Court. And over time, we could reduce the 
Supreme Court. There is no requirement that the Supreme Court have nine 
Justices or seven or five or three. We could reduce the Supreme Court 
of the United States down to the Chief Justice. There is no requirement 
that we build or fund a building or heat it or wire it for electronics 
or anything. There is no requirement that we have staff for any of the 
Supreme Court. The Congress could crank all the Federal courts down to 
just the Supreme Court, reduce the Supreme Court down to just the Chief 
Justice at his own card table, with candle, no staff, and no facility.
  That is the argument I made to Justice Scalia. Some of this I do for 
entertainment value because he always was an engaging fellow to have 
these conversations with.
  Mr. Speaker, I don't know if you ever heard this point made to him 
before, but Justice Scalia's response to it was: I would argue that 
there is a requirement that there be three Justices on the Supreme 
Court; otherwise, there is no reason to have a Chief Justice.
  I thought that was a pretty astute response, Mr. Speaker. But my 
response to that was: we have always had too many chiefs and not enough 
Indians.
  So we had a little fun with that and moved on, but that is the 
leverage that the House and the Senate has together. There is not a 
requirement that there be a ninth Justice on the Supreme Court. I am 
comfortable with that and supportive of that, but I want to fill that 
seat with someone that reflects the values of Justice Scalia and 
perhaps one that will reflect even more closely the values of Justice 
Thomas, in particular.
  And there are a number of other Justices that I admire on the Supreme 
Court, but another activist on the Supreme Court is not what this 
country needs. This country needs to have a constitutionalist, an 
originalist, a textualist on the Supreme Court that will reflect the 
meaning of this Constitution at its time of ratification.
  And that is why our Founders gave us a means to amend the 
Constitution. They didn't intend for the Supreme Court to be taking on 
the trappings of a super legislature and legislating on one day by 
adding words to ObamaCare, and then the very next day create the new 
command in the Constitution that the State shall conduct same-sex 
marriages and honor same-sex marriages in other States. That is over 
the top. That is beyond the pale.
  If you can imagine what our Founding Fathers would say, how about the 
signers of the Declaration of Independence?
  If we could bring them to life today and walk them out here into 
Statuary Hall and say: take a look at this painting up here where you 
are all signing this Declaration of Independence. Or better yet, go 
over to the Archives, where they pledged their lives, fortunes, and 
sacred honor, and you can still see John Hancock's signature there 
almost as clearly as the day that he may well have signed that.
  What would those Founding Fathers say if they knew that within a 24-
hour window or maybe a 25-hour window, the Supreme Court of the United 
States said, We are going to confer national health insurance on 
everybody in America, and the Congress didn't write the law right, so 
we wrote it for them; and then the next day, same-sex marriage?
  You wouldn't find a single Founding Father that would agree with 
either one of those decisions, Mr. Speaker. We are on the cusp of 
making an appointment to the Supreme Court that would feed this back to 
us and do more and more and more.
  How do you possibly teach the Constitution to young people? How do 
you teach civics to young people if the Constitution itself is moving 
in such a way that no one can predict what would happen?
  I am very pleased to see that I am joined by another 
constitutionalist out of the State of Florida, who is a clear thinker 
and has a good understanding. I yield to the gentleman from Florida 
(Mr. Yoho), my friend and a doctor.
  Mr. YOHO. I would like to thank my colleague for those kind words.
  Mr. Speaker, I would like to take just a quick moment to add to the 
important work that Mr. King is doing and to thank my colleague for 
yielding me the time and for his continued leadership in the fight to 
ensure the dignity of the Supreme Court so that it is not undermined by 
the nomination and subsequent appointment of a Justice whose judicial 
ideologies run counter to the Founders' constitutional principles, as 
you have spoken so eloquently about.
  The United States of America, the great American experiment, is an 
experiment that has surpassed centuries of speculation and persisted 
through the Civil War, an experiment that survived two World Wars and 
continues to stand as a beacon of hope to nations across the globe, an 
experiment made possible because of the foresight of our Founding 
Fathers--and it had to have some divine intervention because men just 
aren't that smart, so there was wisdom--who recognized the necessity to 
establish a government ruled by a series of laws they felt were so 
essential to ensure equal opportunity--not equal outcome, but equal 
opportunity--in the pursuit of prosperity and happiness to all 
citizens.
  These documents--the United States Constitution and the Bill of 
Rights--I have right here. I want people to look at this. This is the 
entire Declaration of Independence and the Constitution. I think if you 
look at it, we will all agree it is not an epic in volume. Even my 
colleague across the aisle recognizes that.
  It is not an epic in volume, but yet it is an epic in the ideology of 
what America stands for. And it stands for opportunity. And if you put 
work behind that, it becomes the American Dream, your American Dream. 
The very fabric of this country is our core value, our founding 
principles, and the Constitution that preserves this.
  And that is the very document that gives people on the left the voice 
of dissension, as it does people on the right. And if we lose this--
these principles--we lose that very argument, the very thing that made 
America great.
  And I ask you: Are those ideologies Republican or Democrat, 
conservative, liberal, White, Black, or any other adjective you want to 
throw in there?
  And I would venture to say that you would all say no, they are 
American ideologies. That is why this discussion is so important.
  The United States is facing an unprecedented attack by activist 
justices in both the lower and upper courts. If leaders were to yield 
to the demands of President Obama or any other executive in the future, 
and nominate any individual who does not have a true, tried, and tested 
conservative record on constitutional issues, the ensuing Supreme Court 
opinions could be detrimental to constitutional law for years, if not 
decades, to come. And I would surmise that if we cross that bridge and 
go beyond the constitutional principles of this country, what America 
is, what it has been in the past, and what we hope it to be in the 
future may be lost in the history of time.
  While I fully understand the importance of having a full Bench and 
all nine Justices available to hear some of the most critical cases of 
our time, it should not be done at the expense of our Constitution. 
That is a document we all should revere. We all should stand up and 
protect it. After all, don't we all give an oath to uphold that sacred 
document?
  As American culture has ebbed and flowed--and it will continue to--
morphing into what it is today, it was these founding documents that 
fostered an environment where the voice of the few, not just the many, 
could be heard.

[[Page 4354]]

  And that is the beauty of our country: a constitutional Republic. So 
many people want to refer to it as a democracy. A democracy is majority 
rule. A democracy is mob rule. And as Ben Franklin was often quoted:

       Democracy is the same as two wolves and a sheep deciding 
     what to have for lunch.

  As we know, in that story, the sheep always loses. So that is why it 
is so important, because a constitutional Republic protects the rights 
of the minority, of all people.
  American culture, as I said, has ebbed and flowed over the period of 
time and it is morphing and will continue to morph. They have allowed 
for the people to dictate change, not a man who likes to remind the 
American people that he believes he can rewrite our history and, 
through the use of his phone and a pen, direct executive agencies to 
act with disregard to the voice of the people. A pen and a phone are 
not a replacement for the legislative body. And it is the Senate's 
chore to pick that person.
  Take, for example, a vital case about to be argued before the Supreme 
Court next week: United States v. Texas. To some, this may seem like a 
simple anti-immigration or, in some cases, a pro-immigration case. But 
at its core, it is not about whether or not you are anti- or pro-
immigration. It is about whether or not the Supreme Court will allow 
the executive branch to circumvent Congress and legislate from the Oval 
Office rather than through Capitol Hill, the way it was intended by our 
Founders.
  I believe the Constitution is clear on this issue, but I also believe 
any Justice who does not have a deep appreciation for the Constitution, 
as the late Justice Scalia did, would disagree with me. Therein lies 
the danger: any Justice who is willing to tip the scale in the balance 
of power in favor of a runaway Presidential office.
  And it is not just this administration. It could be any in the 
future. And that is why this is so important. This crosses party lines. 
It is a political ideology that I would argue threatens the very fabric 
of the foundation and the founding of our Nation.
  Congress cannot allow itself to cave and settle for a Justice that 
would be complacent in the destruction of the Constitution and 
ultimately the destruction of the great American experiment.

                              {time}  1715

  I challenge the President to get serious with this nomination and put 
forth the name of a Justice that will uphold the constitutional 
principles and not legislate from the bench.
  In the meantime, I urge my colleagues in the Senate to hold steadfast 
and not allow themselves to be persuaded by public opinion, public 
pressure, and by those who will try to pressure them to vote for any 
nominee who will do the American legacy and the American people an 
injustice by undermining the Constitution from the highest court in 
this great Nation.
  This discussion is so important. The very fabric of this discussion 
and the very basis of this discussion is about the preservation of this 
institution. That is what this is about.
  If you look at a timeline of human history and you look at the 
American experiment, it is but a dot on that period of time, but it has 
created the greatest country in the world. The reason that has been 
allowed is because of the Constitution.
  Again, those ideologies aren't Republican; they are not Democrat. 
They are American ideologies so that we will all benefit. And we all 
have a hand to preserve those. We can have our differences, but this is 
one thing we shouldn't differ on, and this is for the posterity of all 
Americans: conservatives, liberals, White, Black, anybody else.
  This is something we stand strong on, and I appreciate the gentleman 
from Iowa, my colleague and mentor, Mr. King, for bringing this up. I 
thank you for continuing the fight and bringing this out to the 
American people. This is important.
  Mr. KING of Iowa. Reclaiming my time and thanking very much the 
gentleman from Florida for the compliments and the input here, too.
  I learned something in this discussion and listening to Mr. Yoho from 
Florida, and that is, when he spoke of divine intervention in our 
Constitution, the answer required divine intervention because men just 
aren't that smart.
  I hadn't heard that expression in this town or anyplace. That 
explains it in a lot of ways. I have long said that I believe that the 
Declaration of Independence and the Constitution are written with 
divine guidance.
  I choose those terms because the Bible was written with divine 
intervention and divine inspiration. That is up here. Divine guidance 
is just a little click below that. I don't want to claim Biblical 
standards, but it is really close. We would not have this country if it 
were not for God's guidance of our Founding Fathers, and so I tuned my 
ear to that.
  I would say also, whose advice should the Senators listen to on the 
other side?
  Well, they should listen to Ted Yoho's advice. I hope they are 
listening to my advice, Mr. Speaker. But those on the Republican side 
of the aisle, they are pretty solid.
  I want to publicly and personally thank my friend, whom I appreciate 
and respect a lot, Jerry Moran, who has been in a difficult place in 
Kansas. He is a terrific friend, and I served with him here in the 
House of Representatives. His position is shored up in opposition to 
having hearings in the Judiciary Committee and trying to move this. I 
think the reconsideration that he has done is a good thing, and I hope 
the people of Kansas understand and appreciate Jerry Moran in the 
fashion that I do as well.
  I would suggest that maybe Jerry Moran and some of the Democrat 
Senators, in particular, may have been listening to this advice, Mr. 
Speaker. This would be advice from the Vice President himself, Joe 
Biden, advice that he gave on June 25, 1992. So it has sustained the 
test of time in this fashion. It is called the Biden Rule. Quote, from 
Vice President Joe Biden:

       It is my view that if a Supreme Court Justice resigns 
     tomorrow, or within the next several weeks, or resigns at the 
     end of the summer, President Bush should consider following 
     the practice of a majority of his predecessors and not--
     repeats it--and not name a nominee until after the November 
     election is completed.

  That is Joe Biden, and, at that time, he was the chairman of the 
Senate
Judiciary Committee, Mr. Speaker. Again, that was June 25, 1992. We are 
only a couple of months away in proportion to that in this period of 
time.
  So if our friends over on the Senate side are not listening to the 
Vice President, I would suggest they might listen to the Senate 
minority leader, Harry Reid, the former majority leader in the Senate.
  This is Harry Reid's statement made in 2005. You will note that this 
was back when George W. Bush was President. Harry Reid, minority leader 
today in the Senate:

       The duties of the United States Senate are set forth in the 
     Constitution of the United States. Nowhere in that document 
     does it say that the Senate has a duty to give Presidential 
     nominees a vote. It says appointments shall be made with the 
     advice and consent of the Senate. That is very different than 
     saying every nominee receives a vote . . . The Senate is not 
     a rubber stamp for the executive branch.

  That is Harry Reid, 2005.
  Both of those gentlemen, I would say today, would argue against their 
previous arguments. I am reinforcing their arguments today on the floor 
of the House of Representatives.
  We are not finished, Mr. Speaker. Who is another strong, influential 
voice over there in the Senate Judiciary Committee?
  Senator Schumer of New York. He wanted to block the Bush nominees, 
and here is what he had to say. He said:

       We should not confirm any Bush nominee to the Supreme Court 
     except in extraordinary circumstances.

  Senator Schumer cited ideological reasons for the delay, and I begin 
another quote:

       They must prove by actions, not words, that they are in the 
     mainstream, rather than we have to prove that they are not.

  Well, there is a statement of ambiguity for you, Mr. Speaker, 
requiring

[[Page 4355]]

an appointment to the Supreme Court to prove that they are in the 
mainstream.
  What is the mainstream? That would be what Chuck Schumer would define 
as the mainstream, depending upon whether or not he supported the 
candidate that was speaking to present themselves to be in the 
mainstream.
  I would argue that mainstream is not a requirement for an appointment 
to the Supreme Court. The requirements for the appointment to the 
Supreme Court are determined by the discretion and the judgment of the 
confirming Senators over on the other side of this Capitol Building, 
and they should be obligated to only confirm Justices who interpret the 
Constitution to mean what it says.
  To mean what it says. Is that too much to ask? Why, then, do we have 
a Constitution if it can't mean what it says?
  Senator Schumer wasn't done, however. He argued again in 2007:

       We should reverse the presumption of confirmation. The 
     Supreme Court is dangerously out of balance. We cannot afford 
     to see Justice Stevens replaced by another Roberts, or a 
     Justice Ginsburg by another Alito.

  That was 2007.
  Well, I think the Supreme Court is dangerously out of balance 
precisely because of the Justices that Senator Schumer supports and 
because there are not enough Justices on the Supreme Court that he has 
opposed, because I believe that the Justices need to reflect and 
protect the text and the original understanding of the Constitution.
  Every Founding Father believed that as well when they went to their 
grave; and they would be rolling over in it if they saw a Supreme Court 
that was writing law on one day, manufacturing commands the next day, 
and now hearing an argument that the President of the United States has 
a right to his appointment to the Supreme Court, no matter what kind of 
activist he might serve up, that is going to visit upon the American 
people, for at least the next generation, decisions that usurp the 
authority of the United States House of Representatives and the United 
States Senate and commandeer the legislative authority away from 
Article I and commandeer some kind of authority to manufacture 
commands, as they did last June.
  Then, we are not done yet. In case this argument isn't strong enough 
at this point, Mr. Speaker, here is another.
  The very individual that made the appointment to the Supreme Court, 
that would be then-Senator Barack Obama, now President Obama, he 
filibustered the Alito appointment--the Alito nomination. Excuse me.
  Here is what then-Senator Obama argued in 2006. Well, they say this 
now. This is his spokesman today: ``President Obama regrets 
filibustering the nomination of Supreme Court Justice Samuel Alito in 
2006''--this is from his top spokesman who said, just a week or so ago, 
``though he maintains that the Republican opposition to his effort to 
replace Justice Antonin Scalia is unprecedented.''
  No, the President of the United States' opposition to Justice Alito 
was unprecedented, not the opposition created here by Chairman Grassley 
or Majority Leader McConnell and almost every Republican over there in 
the United States Senate; and I don't know any Republicans in the House 
who think they ought to move this appointment now.
  So, here are some other positions along the way, Mr. Speaker, 
regarding Senator Grassley's comments. Senator Grassley made some 
strong positions on the floor of the Senate a little over a week ago, 
and they were published in Politico, as I recall, where it would be 
this. The Supreme Court has weighed in on this nomination, and that 
would be Chief Justice Roberts has intervened and made comments in this 
way: that before Scalia had passed away, he argued that the 
confirmation process is not functioning very well, that it has gotten 
too political.
  I was very proud of Senator Grassley when he stepped up on the floor 
of the Senate and rebutted that argument and he made the case that, no, 
the confirmation process in the United States Senate has gotten 
political precisely because the Court itself is making political 
decisions rather than decisions based upon the law and the supreme law 
of the land, the Constitution.
  So when you see political decisions come out of the Court--and those 
decisions, I have described some of them; there are many others--that 
means that the confirmation process itself is political.
  And when I sat before the Supreme Court and heard the oral arguments 
before the Court--and I hope to do that again next week--I was amazed. 
I expected that I would hear profound constitutional arguments before 
the United States Supreme Court. I mean, I grew up, I guess, naively 
believing that those were the arguments made before that Court. I think 
the Warren Court had already turned that thing in the other direction, 
and I didn't realize it.
  But when I first sat before the United States Supreme Court and 
listened for those arguments, thinking it was going to be an amazing 
educational experience for me, what I found was there weren't any 
profound constitutional arguments made. Those arguments, instead, were 
being made to the swing Justice on the Court to try to get to that 
individual's heart, because they understood the various proclivities in 
the thinking and the rationale that might come. They went back and 
looked at the lives, the lifestyle, the history of the Justices and 
wondered what moves their heart rather than what moves their rationale. 
We should only have Justices whose rationale is moved by constitutional 
arguments before the Court.
  Let's see. Who else do I have?
  President Obama, who made the argument that he wants appointments to 
the Supreme Court who have--what is the word?--compassion, empathy. 
President Obama's word is ``empathy.''
  We are not looking for empathy on the Supreme Court. We are looking 
for Justices that can rule on the letter and the text and the original 
meaning and understanding of the Constitution, and the letter and text 
of the law here in Congress that we passed.
  And, yes, they can take into consideration congressional intent, but 
they can't amend the language. If the language says one thing, they 
don't get to add words to it. They should ship it back over here and 
tell us what they have interpreted that it said, and then the Congress 
can decide whether or not we want to act.
  We take an oath to support and defend the Constitution. That doesn't 
mean we are bound by a decision of the Supreme Court that turns the 
Constitution on its head.
  So this fight that is going on in the Supreme Court with the 
nomination to the Court now is one that will turn the destiny of the 
United States of America.
  Depending on who ends up as the next President of the United States, 
I have every confidence that Senator Grassley holds his ground, that 
there will not be hearings before the United States Senate Judiciary 
Committee, that the Senate prerogative will prevail, and that the 
people will go to the polls in November and elect a President. Part of 
that decision will be: Will that President make the right appointment 
to the Supreme Court?
  In the meantime, Chuck Grassley, the man who is now the chairman of 
the committee, stands in the gap in the same way that Leonidas stood 
against Xerxes at the Battle of Thermopylae when he led the 300 to 
stand in that gap and face 300,000 Persians. He is holding his ground. 
He is holding his ground nobly. He is holding it with conviction. He is 
holding it with determination. And we need to stand with him, beside 
him, and behind him in every way that we can and understand that this 
is a political assault that is going at him.
  We should reward him for his convictions by electing a President who 
will make that appointment to the Supreme Court who reflects the will 
of the people. And the will of the people, I trust, will still want to 
see an appointment to the Supreme Court of a Justice who would stand up 
and say this Constitution means what it says.
  The text of this Constitution has to mean what it says, and it has to 
be interpreted to mean that which it was

[[Page 4356]]

understood to mean at the time of its ratification. And if you don't 
like what it does for our policy, then get to work and amend the 
Constitution. That is why that provision is there. That is why we have 
the amendments to the Constitution today.
  So I thank Senator Grassley for his strong stand. I thank Mitch 
McConnell for his leadership in the Senate. I thank everyone over there 
who holds their ground, and everyone here in this Congress who takes an 
oath to support and defend the Constitution and means it.
  Mr. Speaker, I yield back the balance of my time.

                          ____________________