Filling the Supreme Court Vacancy

Floor Speech

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Mr. DURBIN. Mr. President, I will thank my colleague from Iowa. I hoped to get a chance to speak to him personally about another matter, but I will call him from the floor afterward. We will get in touch. Senator Hatch is here. I don't want to delay the proceedings of the Senate, but I would like an opportunity to respond on this issue that was raised by Senator Grassley.

Senator Grassley of Iowa is my friend. Politicians say that sometimes and mean it, and say it sometimes and don't mean it. I mean it. We have become friends as neighboring States and sharing a lot of plane rides together, serving on the same committee, serving in the same body for a number of years, and I respect him very much. We have different points of view on many things, but we found common agreement on many other things. So I do respect him when I say that at the outset as I respond to his remarks.

What is this about? This is about the passing of Justice Scalia and whether his seat on the Supreme Court will be filled, and if it will be filled, who will do it and when. The first place for us to turn when it comes to asking questions is the one document, the only document, that matters, the U.S. Constitution. It is this document that we literally all swore to uphold and defend, every one of us, Democrat and Republican. It is this document that is explicit, not making a suggestion but really spelling out the responsibilities when it comes to a vacancy on the Supreme Court, and it is article II section 2. Article II, section 2 says that the President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.'' Shall.

It is our responsibility under this Constitution to do this. It is amazing to me in the history of this Republic, guided by this great document, we have reached a point in the year 2016 where those simple words, directions in the Constitution, are being challenged and ignored by the Republican majority because, you see, there has never--underline the word never--been a moment in history when the Senate has refused to extend a hearing to a Supreme Court nominee until this moment. There has never been a moment in history, never--underline that word--when the Senate has refused a vote on a Supreme Court nominee.

I can't say never, but it is been more than 150 years since we have allowed a vacancy on the Supreme Court to go on for more than a year, as the Republicans in the Senate are determined to do here. That 150 years goes back to the Civil War. So I would say to my colleague from Iowa, you are about to make history if you stand by this decision. If you decide the Senate Judiciary Committee will not even entertain a nomination to fill the Scalia vacancy on the Supreme Court, it will be the first time in the history of the U.S. Senate--the first. If the Senate Republican leadership makes the decision that even if a nominee is sent they will never allow a vote, it will be the first time in the history of the United States of America. That is why this is such a definitive issue. That is why the position taken by the Senate Republican majority is so different, so unusual, and in some cases so extreme.

The argument is being made on the other side--listen to this argument. This argument is being made: Well, we are in a campaign year. This is a Presidential election year. Who knows who the next President will be. Let the American people choose that President and that President choose the nominee.

It overlooks one basic fact. Three years and three months ago, the American people chose a President. By a margin of 5 million votes, Barack Obama defeated Mitt Romney for President of the United States. They made their selection. Did they elect President Obama for a 3-year term? Let me check the Constitution, but I think it was a 4-year term. Oh, was it 3 years and 3 months? No. It turns out the American people spoke in our democracy by a margin of 5 million votes and said: Barack Obama, you will be President of the United States until January the 20th, 2017. Was there a rider or some exclusion that said you can't appoint a nominee, name a nominee to fill a vacancy on the Supreme Court in the last year of your Presidency? I don't remember that. Perhaps that was the case in some States, but not in Illinois and, to be honest, in no other State.

The President was elected for 4 years. He was given the consent and authority of the American people to govern this Nation for 4 years and to fill the vacancies on the Supreme Court as he is directed to do by the U.S. Constitution.

Now the Senate Republicans have come up with a different spin: No; he may have been elected, but from their point of view, he wasn't given the full power of office. They say Barack Obama was given something less than any other previous President of the United States. They say he was not given the authority to fill a vacancy on the Supreme Court in the last year of his term.

I would like to find the constitutional precedent for that. I invite my colleagues--we have two on the floor. One is the current chairman of the Judiciary Committee, and one is the former chairman of the Judiciary Committee. I invite them to show me that historical, constitutional precedent that says Barack Obama, the President of the United States, really only has the authority of the office for 3 years--3 years and 2 months. Beyond that, he is a lame duck President. Give me the authority for that.

What do they hang their hat on? They hang their hat on a speech made by Vice President Biden when he served in this body 25 years ago. Joe Biden is truly my friend, as he is the friend of virtually every Senator from both sides of the aisle. I respect him so much. I wasn't surprised at all when I heard the Senator from Iowa say that he gave a 20,000-word speech. He gave a lot of 20,000-word speeches. I saw him deliver a few here, and they were a sight to behold. This one I think went on for 90 minutes as then Senator Biden shared his views on filling judicial vacancies and on recommendations. If we listen closely, we know the Senator from Iowa said that Vice President Biden ``recommended,'' ``should consider.'' Well, let me ask this question: Was there ever any time when Senator Biden was the chairman of the Senate Judiciary Committee that he denied a hearing to a Supreme Court nominee? No. Was there ever a time as chairman of the Senate Judiciary Committee when he recommended to the Senate that they deny a vote on a Presidential nomination to fill a Supreme Court vacancy? No. So whatever his theory was that he expressed on the floor of the Senate-- and we all express a lot of theories--Joe Biden was respectful of this document. He knew what the U.S. Constitution said.

I find it hard to imagine that the Republican Senators now in the majority are going to walk away from this Constitution and turn their backs on it. It has been unprecedented. They decided not just on this nominee but long ago that they would not give this President the same treatment, the same respect that has been given other Presidents. Now it has been brought front and center with this vacancy, the Scalia vacancy on the Supreme Court.

I sure disagreed with Justice Scalia on a lot of things, but I do not argue with Judge Posner of the Seventh Circuit in my State when he said that Justice Scalia was a major force in terms of thinking on the Supreme Court. And what really undergirded the philosophy of Justice Scalia was what he called originalism. Some people mocked it, and some people just flat out disagreed with it. But he said time and again: Read the Constitution and read the precise wording of the Constitution. I saw different things in those words than he did, but that was his North Star when it came to Supreme Court decisions.

Well, if he read article II, section 2, which says the President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court''--there is little doubt--no doubt--in those words. And if he relied on the precedent of the United States, the history of the United States that the U.S. Senate has never denied a hearing to a Presidential nominee until this moment in history, has never refused a vote on a nominee until this moment in history, then he would realize that what is being done here is unprecedented and uncalled for.

If my Republican colleagues now in the majority--54 votes strong against 46 on the Democratic side--really disagree with the President's choice, his nominee, whoever it may be, they have an option. There is a constitutional option. The constitutional option is to hold a hearing, do the background check which is done, and then vote, and if you disapprove of that nominee, vote no. That is the regular order and the regular course of events. That is the constitutional way to approach this.

But they have gone even further. Senator McConnell said two days ago he would not only give the President's nominee no hearing and no vote, he refuses to even meet with that person, whoever it may be. Those are the lengths they will go to to avoid facing the constitutional responsibility that every Senator has.

Senators can quote Vice President Joe Biden's speeches of 25 years ago as long as they want. They can read his words over and over again, but the fact is he never stopped a hearing, he never stopped a vote, and he honored the Constitution. The wording of the Constitution didn't go on for 20,000 words. It is just a handful of words that we have sworn to uphold and defend before we can become U.S. Senators.

History will not look kindly on this political decision by the Republican majority. History will not give them a pass. History will ask time and again: How could you ignore the Constitution? How could you ignore your responsibility under the Constitution? Why won't you do your job, a job you were elected to do to fill this vacancy? Is a temporary political victory worth this--to turn your back on the Constitution and the history of this country? I don't think it is.

I hope that when the Republican Senators go home and meet with their constituents over this weekend and in the days ahead, they will have second thoughts. When the President sends a nominee, I hope they will abide by the Constitution, be respectful of this document and respectful of this President, and give his nominee the same due consideration that has been given to Supreme Court nominees throughout history.

Justice Anthony Kennedy became a Justice on the Supreme Court when a Democratic-controlled Senate gave him a vote--a hearing, and then a vote in a Presidential election year much like this one. A lameduck, outgoing President appointed Justice Kennedy. A Democratic Senate did not refuse to meet with him, did not refuse to have a hearing, did not refuse a vote, but said: We will abide by the Constitution. For that outgoing President, he had the full authority of office. President Barack Obama deserves nothing less. And we as Senators have a responsibility under this Constitution, regardless of what speech was made 25 years ago, to pay close attention to these words and to do our constitutional duty.

When the Senate majority leader said that he would not give any consideration to any Supreme Court nominee named by the President--no vote, no hearing, not even a courtesy meeting--it set a new low for the Senate. Throughout our Nation's history, no pending Supreme Court nominee who sought a hearing has been denied one. Some nominees were confirmed so quickly after their nomination that a hearing was not scheduled, and one nominee withdrew before her scheduled hearing could take place, but the Senate has never before refused a hearing to a pending nominee. Similarly, every pending nominee for an open Supreme Court vacancy has been voted upon by Senators. Some nominees were confirmed on the floor, some were rejected on the floor, some nominees were renominated before they got their vote, and some only received a vote on whether to be reported or discharged out of committee, but all of them got a vote. Yet the Senate majority leader has announced that President Obama's next nominee will get no hearing, no vote, not even a meeting.

The President is obligated by Article II, section 2 of the Constitution to send a nominee to the Senate. That is the process the Founding Fathers established. There is nothing in the Constitution that provides for this process to be abandoned in an election year. Just as the President and Senate must do their jobs in times of war and economic depression, they must do their jobs in election years.

The reality is that Republicans simply want to keep the Supreme Court seat vacant in the hopes that their presidential nominee will get to fill it. It is a purely political calculation. But Presidential politics do not trump the Constitution.

The Republican leader should do what past Republican leaders like Senator Everett Dirksen of Illinois did when a Supreme Court vacancy arose in the election year of 1968--roll up his sleeves and get to work.

Senate Republicans have come up with a number of excuses for shirking their constitutional responsibilities. But the bottom line is that there is no excuse for the Senate to fail to do its job.

The President made clear yesterday that he is taking his constitutional responsibility seriously. He wrote a piece in the website SCOTUSblog explaining the careful, deliberative process he is undertaking to choose a nominee. The President said he will select a person who has outstanding qualifications, a commitment to impartial justice, a deep respect for the role of the judiciary, and a life experience that shows integrity and good judgment.

The President is doing his job, as the Constitution requires. Senate Republicans must stop the pattern of obstruction that they have shown with so many of President Obama's nominees and do their job, too. Once the President selects a Supreme Court nominee, Senators should meet with the nominee, give him or her a fair hearing, schedule a vote, and fill the vacancy on our Nation's highest Court.

This is far from the first time that Republicans have engaged in unreasonable obstruction of nominations made by President Obama. According to statistics from the Congressional Research Service as reported in a Jan. 5, 2016 Politico article, ``the Senate in 2015 confirmed the lowest number of civilian nominations--including judges and diplomatic ambassadors--for the first session of a Congress in nearly 30 years.'' Only 173 civilian nominees were confirmed last year.

Other examples of Republican obstruction of nominations include the following:

Judicial nominations:

D.C. Circuit: In 2013, Republicans announced they would oppose any person President Obama nominated to fill three vacancies in the D.C. Circuit Court of Appeals, simply because they did not want Obama to fill those vacancies. The President nominated three unquestionably qualified people -- Patricia Millett, Nina Pillard, and Robert Wilkins, and twice Senate Republicans opposed cloture votes on Millett's nomination. This prompted Senator Reid to change Senate rules to lower the cloture vote threshold for lower court nominees to 50, and subsequently the three D.C. Circuit nominees were confirmed.

Obstruction in the current Republican Senate: Last year, Senate Republicans matched the record for confirming the fewest number of judicial nominees in more than half a century, with 11 for the entire year. Overall, in the current Congress Republicans have only allowed 16 judges to be confirmed, compared to 68 judges that were confirmed by the Democratic-controlled Senate in the last two years of George W. Bush's administration. There are 17 non-controversial judicial nominees pending on the Senate executive calendar, all of whom were reported out of committee by unanimous voice vote. Currently there are 81 judicial vacancies, including 31 judicial emergencies.

National security nominations:

Attorney General Loretta Lynch had to wait 165 days after her nomination to be confirmed by the Republican Senate in April 2015. This was far longer than other recent Attorney General nominees had to wait for a confirmation vote. By comparison, the Democratic Senate confirmed Michael Mukasey in 53 days in 2007.

Treasury Undersecretary for Terrorism and Financial Crimes: Adam Szubin was nominated on April 20, 2015 for this position, which involves tracking and blocking financing to terror groups like ISIS. Banking Chairman Shelby described Szubin as ``eminently qualified'' for the position, but he has still not received a floor vote in over 10 months.

Under Secretary of Defense for Personnel and Readiness: Brad Carson was nominated on July 8, 2015 for this position, which is responsible for ensuring our military is ready to face threats around the world. He is waiting for a hearing.

Secretary of the Army: Eric Fanning was nominated on Sept. 21, 2015 for this position, which involves overseeing U.S. Army personnel, strategy, and readiness around the world. He waited four months just to get a hearing, and now he is waiting to receive a Committee vote.

General Counsel, Defense Department: Jennifer O'Connor was nominated on Sept. 21, 2015 for this position, but she is waiting for a hearing.

Under Secretary for the Navy: Janine Davidson was nominated on Sept. 21 for the #2 position in the Navy, but she is still awaiting confirmation.

Foreign policy nominations

Ambassadors and foreign policy positions: Only 59 ambassador or other key foreign policy positions have been confirmed in this Congress with an average confirmation wait of six months. For comparison, during the 110th Congress (2007-08) when George W. Bush was President and the Democrats controlled the Senate, more than 120 nominees for key foreign policy positions were confirmed with an average confirmation wait of under three months.

Of the seven State Department nominees confirmed a few weeks ago, three were nominated in 2014 or earlier. These include Brian Egan (Legal Advisor, first nominated in 2014), John Estrada (Trinidad and Tobago, first nominated in 2013), and Azita Raji (Sweden, first nominated in 2014).

Ambassador to Mexico: Roberta Jacobson, a career nominee, was nominated as ambassador to Mexico on June 2, 2015 but she is still awaiting confirmation.

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