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Alan F.
Democrat MN

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  • Filling the Supreme Court Vacancy

    by Senator Al Franken

    Posted on 2016-02-24

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    FRANKEN. Mr. President, I rise today to address the recent vacancy on the U.S. Supreme Court and to urge my colleagues to grant swift consideration of the President's eventual nominee.



    Make no mistake, the passing of Justice Antonin Scalia came as a great shock. Although Justice Scalia and I did not share a common view of the Constitution or of the country, I recognized that he was a man of great conviction and, it should be said, a man of great humor. My thoughts and prayers are with his family, his friends, his clerks, and his colleagues. But we must now devote ourselves to the task of helping to select his successor.

    The Constitution--so beloved by Justice Scalia--provides that the President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.'' Let us all remember that each and every Senator serving in this body swore an oath to support and defend that same Constitution. It is our duty to move forward. We must fulfill our constitutional obligation to ensure that the highest Court in the land has a full complement of Justices. Unfortunately, it would seem that some of my colleagues on the other side of the aisle do not agree, and they wasted no time in making known their objections.

    Less than an hour after the news of Justice Scalia's death became public, the majority leader announced that the Senate would not take up the business of considering a replacement until after the Presidential elections. ``The American people should have a voice in the selection of their next Supreme Court justice,'' he said.

    The only problem with the majority leader's reasoning is that the American people have spoken. Twice. President Barack Obama was elected and then reelected by a solid majority of the American people, who correctly understood that elections have consequences, not the least of which is that when a vacancy occurs, the President of the United States has the constitutional responsibility to appoint a Justice to the Supreme Court. The Constitution does not set a time limit on the President's ability to fulfill this duty, nor, by my reading, does the Constitution set a date after which the President is no longer able to fulfill his [[Page S978]] duties as Commander in Chief or to exercise his authority to, say, grant pardons or make treaties. It merely states that the President shall hold office for a term of 4 years, and by my count, there are in the neighborhood of 11 months left.

    If we were truly to subscribe to the majority leader's logic and extend it to the legislative branch, it would yield an absurd result. Senators would become ineffective in the last year of their terms. The 28 Senators who are now in the midst of their reelection campaigns and the 6 Senators who are stepping down should be precluded from casting votes in committee or on the Senate floor. Ten committee chairs and 19 subcommittee chairs should pass the gavel to a colleague who is not currently running for reelection or preparing for retirement. Bill introduction and indeed the cosponsorship of bills should be limited to those Senators who are not yet serving in the sixth year of their terms. If the majority leader sincerely believes the only way to ensure that the voice of the American people is heard is to lop off the last year of an elected official's term, I trust he will make these changes, but I suspect he does not. Rather, it seems to me that the majority leader believes the term of just one elected official in particular should be cut short, which begs the question, just how should it be cut? As I said, by my count, approximately 11 months remains in Barack Obama's Presidency. Now, 11 months is a considerable amount of time. It is sizeable. It has heft, but I wouldn't call it vast.

    Then again, there is a certain arbitrariness to settling on 11 months. After all, it is just shy of a full year. Perhaps, in order to simplify matters, an entire year would be proper or maybe just 6 months, half a year. It is a difficult decision. If only the American people had a voice in selecting precisely how much time we should shave off the President's term.

    Of course, now that I mention it, there is a way to give the American people a voice in this decision. The majority leader could propose a constitutional amendment. It would, of course, have to pass both Houses of Congress with a two-thirds majority, but that is not an insurmountable obstacle. Provided it clears Congress, the amendment would then bypass the President--which, in this case, would be very apt--and be sent to the States for their ratification. So if the majority leader truly wants the voters to decide how best to proceed, our founding document provides a way forward.

    Suggesting that the Senate should refuse to consider a nominee during an election year stands as a cynical affront to our constitutional system, and it misrepresents our history. The Senate has a long tradition of working to confirm Supreme Court Justices in election years. One need look no further than sitting Associate Justice Anthony Kennedy, a Supreme Court nominee appointed by a Republican President and confirmed by a Democratic Senate in 1988--President Reagan's last year in office--during an election year. So when I hear one of my colleagues say ``It's been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year,'' I know that is not true.

    I am not the only one who knows that is not true. The fact-checking publication PolitiFact recently observed that ``[s]hould Republican lawmakers refuse to begin the process of confirming a . . . nomination, it would be the first time in modern history.'' SCOTUSblog, an indisputable authority on all matters related to the Court, confirmed that the ``historical record does not reveal any instances [in over a century] of the . . . Senate failing to confirm a nominee in a presidential year because of the impending election.'' The fact is that there is a bipartisan tradition--a bipartisan tradition--of giving full and fair consideration to Supreme Court nominees. Since the Judiciary Committee began to hold hearings in 1916, every pending Supreme Court nominee, save nine, has received a hearing. And what happened to those nine nominees? They were confirmed within 11 days of being nominated.

    In 2001, during the first administration of President George W. Bush, then-Judiciary Committee Chairman Leahy and Ranking Member Hatch sent a letter to their Senate colleagues making clear that the committee would continue its longstanding, bipartisan practice of moving pending Supreme Court nominees to the full Senate, even when the nominees were opposed by a majority of the committee, but, regrettably, my colleagues on the other side of the aisle are leaving that long tradition behind.

    Yesterday, every Republican member of the Senate Judiciary Committee sent a letter to the majority leader vowing to deny a hearing to the President's eventual nominee. ``This committee,'' they wrote, ``will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20th, 2017.'' This marks a historic dereliction of the Senate's duty and a radical departure not just from the committee's past traditions but from its current practices.

    I know that my good friend Chairman Grassley cares a great deal about maintaining the legacy of the Judiciary Committee and the propriety of its proceedings. Under his leadership, we have seen the committee put country before party and move consensus, bipartisan proposals. I had hoped Chairman Grassley would approach the task of confirming our next Supreme Court Justice with the same sense of fairness and integrity. I still hope that. But I was very disappointed to learn that yesterday Chairman Grassley gathered only Republican committee members in a private meeting where they unilaterally decided behind closed doors to refuse consideration of a nominee. The decision to foreclose even holding a hearing for a nominee to our Nation's highest Court is shameful, and I suspect the American people share that view.

    The Supreme Court is a central pillar of our democracy. The women and men who sit on that bench make decisions that touch the lives of every single American, regardless of party or political persuasion. Now the Senate must do the same. We must honor our solemn duty to uphold the Constitution and to ensure that Americans seeking justice are able to have their day in court before a full bench of nine Justices.

    I urge my colleagues to reject the impulse to put politics before our sworn duty to uphold the Constitution.

    I thank the Presiding Officer and yield the floor to my colleague from Utah.

    The PRESIDING OFFICER (Mr. Gardner). The Senator from Utah.

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