Filling the Supreme Court Vacancy

Floor Speech

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Mrs. SHAHEEN. Mr. President, since the beginning of our Nation, the U.S. Senate has maintained an important bipartisan tradition of giving fair consideration to Supreme Court nominees. Article II, section 2 of the Constitution is unambiguous about the respective duties and responsibilities of the President and the Senate when there is a Supreme Court vacancy. The Founders did not intend these roles to be optional or something to be disregarded. Article II also states that the President shall hold his office during the term of 4 years, not 3 years or 3 years and 1 month, but 4 full years.

The Constitution plainly says that it is the President's duty to nominate a Supreme Court Justice and it is the Senate's duty to provide advice and consent on that nomination. Throughout our history, Senators have done their constitutional duty by considering and confirming Supreme Court Justices in the final year of a Presidency. In fact, the Senate has done that 14 times, most recently in 1988, when the Senate confirmed Justice Anthony Kennedy, who was President Reagan's nominee to the Supreme Court. He sent that nomination over to the Democratic majority in this body. Almost 28 years ago exactly to the day in February of 1988, the Democratic majority in the Senate confirmed Republican President Ronald Reagan's judicial nomination, Anthony Kennedy, unanimously 97-0. They didn't debate whether it was a Presidential year and whether they could act. It was in the middle of a hard-fought election. It was not at all clear what the outcome of that election was going to be.

Since 1975, the average length of time from nomination to a confirmation vote for the Supreme Court--that is the average length of time; sometimes it has taken longer and sometimes it has been shorter-- but since 1975, the average length of time has been 67 days because our predecessors in the Senate recognized how important it is for the Supreme Court to be fully functioning.

Unfortunately, this week we are seeing this bipartisan tradition regarding the Court being put at risk. Yesterday we heard the majority leader say that if the President nominates a person to the Supreme Court--any person, no matter how superbly qualified--there will be no hearings and no vote. We even heard some Senators say they would refuse to meet with any potential nominee. I think that is very unfortunate.

It is unfortunate for a number of reasons, probably first and foremost because the people of the United States expect us to work together here in Washington to do the job of the country--to do the jobs we were elected to do--and because the current President's term ends in January of 2017. That is more than 300 days from now. During that time, the Supreme Court will hear many important cases, but if the majority in the Senate has their way, the Court will do so without a full roster of Justices.

As Brianne Gorod of the Constitution Accountability Center has said, and I quote:

The consequences of the Supreme Court being without all nine justices for so long can hardly be overstated. Most significant, a long-standing vacancy would compromise the Court's ability to perform one of its most important functions, that is, establishing a uniform rule of law for the entire country.

Every Senator here has sworn to support and defend the Constitution-- full stop. That is the oath we have taken. Our oath doesn't say to uphold the Constitution most of the time or only when it is not a Presidential election year or only when it is convenient for us or only when we like the ideology that is being presented to us. Our oath says to uphold and defend the Constitution every day, no matter what the issue is that comes before us. The American people expect us as Senators to be faithful to our oath. They also expect us to do our jobs regardless of whether it is a Presidential election year.

I believe we should respect our oath of office. I believe we should do the job we were sent here to do by the American people. I believe we should follow the Constitution. As former Justice Sandra Day O'Connor said last week, and I quote again, ``I think we need somebody [on the Supreme Court] now to do the job, and let's get on with it.''

I say, let's get on with it.

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