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Tom C.
Republican AR

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  • Filling the Supreme Court Vacancy

    by Senator Tom Cotton

    Posted on 2016-03-09

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    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 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.

    [[Page S1354]] 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.

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