Filling the Supreme Court Vacancy

Floor Speech

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Mr. GRASSLEY. Mr. President, yesterday the minority leader came to the floor to disparage the work of the Senate Judiciary Committee and also disparage the work of the Senate as a whole. And, of course, as he does from time to time, he launched into a personal attack against me. Now, that is OK. I don't intend to return the favor. I love Senator Reid. I don't want to talk about the nuclear option and the tremendous damage that did to the Senate, not to mention the years and years that Democratic Senators had to endure his leadership without even being able to offer an amendment. There is at least one Democratic Senator, who was defeated in the last election, who never got a chance to get a vote on an amendment during the entire 6 years he was in the Senate.

We all know that is how some people act when they don't get their own way, but childish tantrums are not appropriate for the Senate. I think if my friend Senator Biden had been in the Chamber yesterday, he would have said--as we have heard him say so many times--``that is a bunch of malarkey.''

I didn't come to the floor today to talk about the minority leader. However, I did want to follow up on my remarks from earlier this week on the Biden rules. Now, in fairness, Senator Biden didn't just make these rules up out of thin air. His speech, back in 1992, went into great historical detail on the history and practice of vacancies in Presidential election years. He discussed how the Senate handled these vacancies and how Presidents have handled and should handle them. Based on that history and a dose of good common sense, Senator Biden laid out the rules that govern Supreme Court vacancies arising during a Presidential election year, and of course, he delivered his remarks when we had a divided government, as we have today, in 1992.

Now, the Biden rules are very clear. My friend from Delaware did a wonderful job of laying out the history and providing many of the sound reasons for these Biden rules, and they boil down to a couple fundamental points. First, the President should exercise restraint and ``not name a nominee until after the November election is completed.'' As I said on Monday, President Lincoln is a pretty good role model for this practice. Stated differently, the President should let the people decide. But if the President chooses not to follow President Lincoln's model but instead, as Chairman Biden has said, ``goes the way of Fillmore and Johnson and presses an election-year nomination,'' then the Senate shouldn't consider the nomination and shouldn't hold hearings. It doesn't matter ``how good a person is nominated by the President.'' Stated plainly, it is the principle, not the person, that matters.

Now, as I said on Monday, Vice President Biden is an honorable man and he is loyal. Those of us who know him well know this is very true, so I wasn't surprised on Monday evening when he released a short statement defending his remarks and of course, as you might expect, defending the President's decision to press forward with a nominee. Under the Constitution, the President can do that. Like I predicted on Monday, Vice President Biden is a loyal No. 2, but the Vice President had the difficult task of explaining today why all the arguments he made so cogently in 1992 aren't really his view.

It was a tough sell, and Vice President Biden did his best Monday evening, but I must say that I think Chairman Biden would view Vice President Biden's comments the same way he viewed the minority leader's comments yesterday. He would call it like he sees it and as we have so often heard him say: It is just a bunch of malarkey. Here is part of what Vice President Biden said on Monday. It is a fairly long quote.

``Some critics say that one excerpt of a speech is evidence that I do not support filling a Supreme Court vacancy during an election year. This is not an accurate description of my views on the subject. In the same speech critics are pointing to today, I urge the Senate and the White House to overcome partisan differences and work together to ensure the Court function as the Founding Fathers intended.''

That doesn't sound consistent with all of those Biden rules I shared with my colleagues on Monday. So we ask: Is it really possible to square Chairman Biden's 1992 election-year statement with Vice President Biden's 2016 election-year statement? Was Chairman Biden's 1992 statement really just all about greater cooperation between the Senate and the White House? When Chairman Biden said in 1992 that if a vacancy suddenly arises, ``action on a Supreme Court nomination must be put off until after the election campaign is over,'' was he simply calling for more cooperation? When he called for withholding consent ``no matter how good a person is nominated by the President,'' was he merely suggesting the President and the Senate work together a little bit more? When he said we shouldn't hold hearings under these circumstances--was that all about cooperation between the branches?

Since we are talking about filling Justice Scalia's seat, it seems appropriate to ask: How would he solve this puzzle? I suppose he would start with the text. So let us begin there.

In 1992, did Chairman Biden discuss cooperation between the branches? Yes, in fact, he did. So far, so good for Vice President Biden, but that can't be the end of the matter because that doesn't explain the two vastly different interpretations of the same statement. Let us look a little more closely at the text. Here is what Chairman Biden said about cooperation between the branches: ``Let me start with the nomination process and how the process might be changed in the next administration, whether it is a Democrat or a Republican.''

Remember, again, I emphasize that was during the 1992 election year. We didn't have to search very long to unearth textual evidence regarding the meaning of Chairman Biden's words in 1992. Yes, he shared some thoughts about how he believed the President and Senate might work together, but that cooperation was to occur ``in the next administration''--in other words, after the Presidential election of 1992, after the Senate withheld consent on any nominee ``no matter how good a person is nominated by the President.''

So the text is clear. If you need more evidence that this is an accurate understanding of what the Biden rules mean, look no further than a lengthy Washington Post article 1 week prior. In that interview he made his views quite clear. He said: ``If someone steps down, I would highly recommend the president not name someone, not send a name up.'' And what if the President does send someone up?--``If [the President] did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee.''

Specifically, my friend Chairman Biden said: ``Can you imagine dropping a nominee after the three or four or five decisions that are about to be made by the Supreme Court into that fight, into that cauldron in the middle of a presidential [election] year?''

Chairman Biden went on: ``I believe there would be no bounds of propriety that would be honored by either side. . . . The environment within which such a hearing would be held would be so supercharged and so prone to be able to be distorted.''

At the end of the day, the text of Chairman Biden's 1992 statement is very clear. So, in 2016, when he is serving as a loyal No. 2 to this President, Vice President Biden is forced to argue that the Biden rules secretly mean the exact opposite of what they say. Ironically, that is a trick Justice Scalia taught us all to recognize and to reject on sight. We know we should look to the clear meaning of his text, as Justice Scalia taught us. This was not a one-off comment by Senator Biden. It was a 20,000-word floor speech forcefully laying out a difficult and principled decision. It relied on historical precedent. It relied upon respect for democracy. It relied on respect for the integrity of the nomination process. There is no doubt what Senator Biden meant.

Of course there is a broader point, and I hope in the next several months we concentrate on his broader point. That is this. Words have meaning. Text matters. Justice Scalia devoted his adult life to these first principles. Do the American people want to elect a President who will nominate a Justice in the mold of Scalia to replace him? Or do they want to elect a President Clinton or Sanders who will nominate a Justice who will move the Court in a drastically more liberal decision? Do they want a Justice who will look to the constitutional text when drilling down on the most difficult constitutional questions or do they want yet another Justice who, on those really tough cases, bases decisions on ``what is in the Judge's heart,'' as then-Senator Obama famously said.

It comes down to this. We have lost one of our great jurists. It is up to the American people to decide whether we will preserve his legacy.

More importantly, do you want a Justice who follows the text of the Constitution? Do you want a Justice who follows the text of the law?

Or, do you want a Justice who makes decisions based on his or her ``heart''? This is a debate we should have. This is a debate I hope we will have. This is a debate I hope will be part of the three or four national presidential debates between Nominee Clinton or Sanders on one side, and whomever the Republicans nominate on the other side. The American people should have this debate. And then we should let the American people decide.

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