Supreme Court Vacancies in Election Years

Floor Speech

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Mr. HIMES. Mr. Speaker, as you know, it has been the custom of the last couple of Congresses to open the Congress with a reading of the entire United States Constitution. I have generally not participated in that because I am not all that comfortable with public displays of piety, and I am a big believer in the notion that what really matters is what you do, not what you say.

Never has the spread between what we say and what we do been quite as wide as it is when we consider the approach that my friends on the Republican side have taken with respect to the absolutely essential constitutional duty of appointing a Supreme Court Justice.

So I am going to break with my past pattern and read briefly from the Constitution, Article II, section 2, which reads:

``He shall have power''--that is referring to the President--``by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public ministers and consuls, Judges of the Supreme Court.''

And there it ends. He shall appoint Justices of the Supreme Court. There it ends.

There is nothing there about he won't do that in an election year. There is nothing there saying that if there is not enough time, he won't exercise his constitutional authority. There is nothing there that, maybe because then-Senator Biden said something 25 years ago, he won't appoint a Supreme Court Justice.

And yet my colleagues on the other side of the Capitol have said they won't even offer the President's nomination the courtesy of a meeting. And let's be very clear. That is a profound abrogation of the constitutional duty that is set out in black and white in the Constitution of the United States.

So let's just spend a minute on the three objections that we are hearing from the Republicans on why the President shouldn't appoint and why they shouldn't even extend the courtesy of a meeting to the President's proposed appointment to the Supreme Court.

First and foremost, they say that it is an election year. The precedent would dictate that the President not nominate in an election year. Well, that is exactly wrong, and you can look it up. These are historical facts. I will just read quickly from SCOTUSblog, which a lot of people look at, in which Amy Howe, the editor, says: ``The historical record does not reveal any instances since at least 1900 of the President failing to nominate and/or the Senate failing to confirm a nominee in a Presidential election year because of the impending election.''

The historical record does not reveal any instances. And then it goes on to list those that have occurred:

President William Taft nominated Mahlon Pitney. Woodrow Wilson made two nominations in 1916--Louis Brandeis and John Clarke. President Herbert Hoover nominated Benjamin Cardozo. President Franklin Roosevelt nominated Frank Murphy. President Ronald Reagan, patron saint of my friends on the other side of the aisle, nominated Justice Anthony Kennedy.

So the idea that there is no precedent is exactly wrong.

This brings us to the other argument, the second argument, which is that there is not time. I brought this graphic here to show that, for the last several Presidents, the average approval time was something like 2 months. The current President has some 300 days left in his term.

Take a look at this one: approval time for Justices Alito, Roberts, Breyer, Ginsburg, and Thomas. If you add all of those individual periods of time together, you still don't get the amount of time that the current President has left in his term.

This, of course, brings us to the arguably most laughable argument that we hear lately, which is that some 20-plus years ago, then-Senate Committee on the Judiciary Chairman Joe Biden said something along the lines of perhaps then the President shouldn't make an appointment because it was an election year.

I don't need to point out that, as much as I like and respect the Vice President, his words of 25 years ago do not carry constitutional force or the force of law. We shouldn't spend a lot of time on that argument.

So what is really going on here? If those are the best arguments against even extending the courtesy of a senatorial meeting to the President's nominee, an unprecedented action, what is really going on?

Here is what is really going on. It is a government shutdown. We have seen this before. When the rules we read at the opening of every Congress result in an outcome my friends on the other side of the aisle don't like, they simply shut it down. They did that in October 2013.

Between the days of October 1 and October 16, they shut down the Federal Government, an action that Standard & Poor's estimated cost the U.S. economy $24 billion, or fully 0.6 percent of our economic growth is gone because the Republicans wouldn't accept the Affordable Care Act.

Look, I get that. They don't like it. But it has been passed in due course in this House, shown to be constitutional by the Supreme Court, and the answer was: No. We don't like it. We are shutting down the government.

Let's not shut down the government over the Supreme Court.

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