Comprehensive Addiction and Recovery Act of 2015
Floor Speech
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Mr. KAINE. Madam President, I rise to offer some thoughts about the current discussion over a vacancy on the Supreme Court.
I had high hopes yesterday for the meeting in the White House between the majority leader, the chairman of the Judiciary Committee, President Obama, and Vice President Biden. I had high hopes that meeting might lead to an opening and a willingness to entertain the important business of filling a vacancy on the Supreme Court, but the announcements made directly after that meeting suggested--a phrase we sometimes use back home--that the schoolhouse door is going to stay closed. There will not be a debate. There will not be a vote. There will not be a committee hearing. In fact, there was even a suggestion, a commitment, that the majority would refuse even to entertain courtesy office visits with the nominee that President Obama is expected to send up soon.
I was disappointed in that, and I wanted to take the floor to offer a simple message. It is very important that the Senate do its constitutional duty and do its job with respect to the Supreme Court vacancy. The job is pretty plain. We have a job description, as most people do who have jobs. The job description is contained mostly in article I of the Constitution, but there are also descriptions of what we must do in the Senate in article II. Article II, section 2, clause 2 of the Constitution says the President ``shall nominate, and . . . with the Advice and Consent of the Senate, shall appoint'' a variety of officials, including Supreme Court Justices.
This is part of our job description, to entertain Presidential nominations for Supreme Court Justices. We volunteer for the job. We take an oath to do the job. We cash a paycheck written by the American people to pay for us to do the job. Frankly, we don't have the option of refusing to do the job.
Is there anything unusual about this situation, a vacancy on the Supreme Court occurring during the last year of a President's term? The answer to that is no.
On 17 occasions, this body has entertained and had a confirmation vote on a Supreme Court Justice in the final year of a President's term--17 times. When this happened, people thought it seemed rare, but when you go back and look at the historical record, it is not rare at all. On each of those occasions in a Presidential election year, the Senate has done its job under article II, section 2, clause 2, and entertained a nominee. There is no reason why this Senate should not do exactly the same thing, follow that historical precedent.
As I have traveled around Virginia in the weeks since the vacancy became open, I have talked to a lot of citizens about this. Sometimes it is helpful for us in this body to think about the way others-- especially our citizens--look at what we are doing or not doing here. Citizens ask me: What possibly could be the reason why the Senate would not follow its clear historical precedent and do a job description that is contained in the Constitution and would refuse a vote, refuse debate, refuse committee hearings, refuse even to meet with a nominee? Why would Congress not do its job? Why would the Senate not do its job?
I have been thinking about that, and I can only conceive of two reasons why this Senate would not do its job, and both of the reasons are highly illegitimate, in my opinion.
The first reason--and this is a reason that occurs to many citizens, and they are very concerned about this--is that the Senate is announcing that it will not do its job because of the identity of this particular President. The Senate has been willing to do the job for other Presidents, but is there something about this particular President that is making the Senate decide to break its historical traditions and violate article II, section 2, clause 2, and not do the job?
This question has given some added oomph because of another recent event. In early February, President Obama sent his budget to the Congress. Pursuant to the Budget Act of 1974--and this has been followed uniformly by the Senate and the House--when the President sends up a budget, the Budget Committees have a hearing about the President's budget--even if they do not like it, and they often don't like it, but that is what you do. You have a hearing about the President's budget. If you don't like it, you criticize the budget and then you write a different budget. That is what has happened for every President since the Budget Control Act of 1974 passed.
In the last year of the Bush administration, when there were Democratic majorities in both Houses when President Bush sent up his budget, hearings were held on the budget. But in this instance, just within the last month, when the budget was sent up from President Obama, both committees said: For this President--breaking the statute, breaking all tradition--we will not even have a hearing on this President's budget.
So if we are going to break a constitutional command and break a history in which 17 Justices have been confirmed in a Presidential year, and if we are going to break it for this President, and if we are going to break the Budget Control Act and break a uniform history since 1974 by not according even a hearing for the budget submitted by this President, then a question that is being asked by the citizens of this country--certainly the citizens of this Commonwealth--is whether the actions taken here on this Supreme Court nomination to not allow a vote, not allow a debate, not allow a committee hearing, and not even allow courtesy office visits, is actually not about the Supreme Court at all, not even about the nominee, whosoever it shall be, but it is a particular mark of disrespect for this President that is unprecedented in the history of this body. That is an explanation which many of my citizens are deeply worried about and which many of my citizens are talking about and asking about, and frankly I don't have a good answer to that concern.
There is a second reason that suggests itself to me with respect to breaking all of the historical precedent on this particular Supreme Court vacancy. It connects to another concern that I have taken to the floor many times to talk about as a member of the Foreign Relations and Armed Services Committees. There is another clause of the Constitution that I care deeply about, and that is article 1, section 8, clause 11. We should not be at war without a vote of Congress.
We are now in the 20th month of a war, and Congress hasn't even voted--this war against ISIL. I go to hearings all the time where Members of the Senate criticize the President for what he is doing or not doing in the war, but I see a complete unwillingness in this House and the House of Representatives to actually do what the Constitution commands and have a vote on the war.
This circumstance reminds me of that: a clear constitutional command in article 2, section 2, clause 2; a clear historical precedent of the Senate engaging; but now, for this President, on this vacancy, a decision: Hold on a second. Maybe we can just avoid voting yes or no. If we vote yes for a nominee the President might send up, we will make some people mad. If we vote no on a nominee the President sends up, we will make some other people mad. Maybe we can just avoid the commands of article II, section 2, clause 2, avoid the uniform history of this body, and not vote at all. If we can avoid voting at all, maybe we can evade accountability; maybe we can evade the criticism that might come to us from our constituents.
That is also highly troubling.
I can't think of any other reasons why this body would violate the clear commands of article II, section 2, clause 2, and violate a uniform history of approving 17 Supreme Court Justices during a Presidential year other than, A, it is fundamentally a sign of disrespect for this particular President or, B, it is a desire by a Senate that certainly has the votes to confirm or deny, consistent with the constitutional provision, to avoid taking a vote and thereby think we can avoid the accountability to our citizens for casting a vote on something that might be controversial. Needless to say, both of those reasons are highly illegitimate and, in my view, are really beneath what we should be doing in this Chamber.
The last thing I will say is this: The job description of a Senator is laid out in the Constitution, but there are other parts of the job that may not be laid out so plainly but that we all understand to be our job. For example, I don't think it is laid out that we should passionately represent our citizens and do constituent service for them, but we all understand that is part of the job.
Well, another part of the job of a U.S. Senator that may not be spelled out as directly as the power to advise and consent on nominations or the power to declare war is that we are elected guardians of this institution, and more than just the institution of the Senate, we are elected to be guardians of the Democratic traditions that are set out in the Constitution, in this marvelous Constitution that establishes three branches of government that have checks and balances against each other.
We should always act, regardless of our disagreements, regardless of our debates or arguments, and the differences of opinion are legitimate. We should always act to promote respect for our institutions, not only the institution of the Senate but the institution of the court system, which has a vacancy right now on the Supreme Court, the institution of the Presidency, toward whom we are sending a signal of disrespect by the actions that are being undertaken in this body. It is part of the job we need to do to build up the respect for the institutions of our government. If Senators don't respect the institutions of our government, why would anyone else respect them? If we act in a way that subverts or tears them down, why would we expect anyone else to respect the institution?
I came here to this body because I do respect the institution. I respect its history. We are all humans; we can make mistakes. Votes have been cast that in the light of day you could look at and expect to be different. But compared to other systems in the world--and I lived in a country that was a military dictatorship when I was a young man, and I can certainly see the great blessing it is to live here in this country and serve here in this body. I deeply fear that the actions we are embarking on in connection with the Supreme Court nomination are expressing a profound disrespect for the article III branch, the courts; a profound disrespect for the article II branch of the Presidency; and, frankly, a profound disrespect for our own history, traditions, and job description in this article I branch of the legislature.
It is not too late for us to turn this around. It is not too late for us to take a pause and, when the President sends over a nomination for the Supreme Court, to do what justice demands. If justice demands anything, it should be that we would analyze an individual on that person's own merits instead of just saying that the blanket rule is that no matter who you are, no matter what your qualifications, because you were sent by this President, we will create a unique rule for you and refuse to entertain you.
We still have time to turn this around. I have no idea when the President will send a nominee over, and I have no idea who that nominee will be, but when that nominee is delivered and recommended to the Senate, it is my prayer that this body will do what article II, section 2, clause 2, demands; that we will do what we have done in every other instance when a President has sent a nominee over in a Presidential election year; that we will not bar the schoolhouse door but we will open the doors to our office to accord a nominee the courtesy of a discussion; that we will have hearings in the Judiciary Committee; and that we will have a robust debate and a vote on this floor. If that vote is a yes, that will be great. If that vote is a no, that will still be fully in accord with the constitutional job description of this Congress. But to not entertain a nominee at all, in my view, would violate our oath, would violate the Constitution, and would express a significant disrespect for all three branches of government.
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