Comprehensive Addiction and Recovery Act of 2015
Floor Speech
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Ms. KLOBUCHAR. Mr. President, I rise today to talk about the Supreme Court vacancy for the second time on the floor, but I did want to thank the cosponsors of our bill, Senator Portman, Senator Whitehouse, and Senator Ayotte, and also Senator Shaheen for her strong amendment that I think would have made such a difference if we could get some immediate emergency funding.
As we know, there are other important provisions in this bill, especially the work I am focused on with prescription drug monitoring, the simple idea that when I talk to doctors, they are never sure if this is someone who is actually abusing the system. They want to do well. They have been trained to do well to get people out of pain. But so often there is not a lot of monitoring about what is going on. And this is going to help get the States to start doing their work. I again thank Senators Whitehouse, Portman, Ayotte, and Shaheen for their work on this bill. filling the supreme court vacancy
Mr. President, I come today to talk about the Supreme Court.
Last Wednesday, I led a meeting of the steering and outreach committee on the Supreme Court and the Senate's constitutional responsibilities. We had the opportunity at that meeting to hear from four distinguished law professors on the constitutional implications of the current vacancy and to put some historical and constitutional context about the choice before us. I would like to share some of the insights with my colleagues.
First of all, Jamal Greene, a professor of law at Columbia Law School, looked to the original intent of the Framers of the Constitution, noting that ``the Framers did not contemplate the use of the Senate's advice and consent power solely to run out the clock on a presidential appointment. As [Alexander] Hamilton speculated in Federalist 76, rejection of a nominee `could only be to make place for another nomination by [the President].' ''
The critical point made by Professor Greene, which was echoed by the rest of the panel, is that inaction is not an appropriate response when the Constitution says that the President shall nominate and that the Senate has a duty to advise and consent. In fact, Professor Gerhardt from the University of North Carolina at Chapel Hill noted that the only time Members truly abandoned their constitutional duties and left this position open was during the Civil War. Think about that. Senators before us in this great Chamber--even before we had this Chamber, when they were meeting in other places. We have been through World War I, we have been through World War II, we have been through the Vietnam war, we have been through civil rights tumult, and always the position was filled and not left vacant for that year time period. We have to go back to the Civil War.
Another common theme we heard from all of the panelists is that the proposed inaction by our colleagues on the other side of the aisle is without precedent in our Nation's history. In the last 135 years, no President has been refused a vote on a nominee for an open seat on the Court. The Senate has confirmed more than a dozen Supreme Court Justices in Presidential election years, including five in the last 100 years. So it is not as if we have to go way back in time; five of them were in the last 100 years. Probably the most oft-cited example is the example of President Reagan nominating Justice Kennedy in his last few years in the White House. He nominated Justice Kennedy, and a Democratic Senate confirmed--not just confirmed but confirmed unanimously.
Another member of the panel was Professor Jeff Stone. He is a professor at the University of Chicago Law School--actually, my professor, my evidence professor. I always enjoy asking my professors questions now that I am a Senator as opposed to when they used to ask questions of me. He was, of course, a former colleague of Justice Scalia's. In fact, when Justice Scalia left the University of Chicago to be appointed to the bench, he actually gave his papers and all of his notes to Professor Stone. While they had some different political views, without a doubt, he had admiration for Professor Stone and Professor Stone had admiration for Justice Scalia, as he has written about since his death.
After reviewing the history of Supreme Court nominations, Professor Stone concluded:
Despite all the fuss and fury over the Supreme Court confirmation process, the plain and simple fact is that the Senate always defers to the president as long as the president puts forth nominees who are clearly qualified and who are reasonably moderate in their views. And this is true even when the Senate is controlled by the opposing party. In short, nominees who are both qualified and moderate are confirmed. Period.
I think he was using as an example--we know there have been nominees who have been turned down by the Senate in past, including in the recent past, but the point is, they got a hearing and they got an up- or-down vote. There are cases where people withdrew their names. There are cases where the up-or-down vote was not in their favor. But they always were moved forward.
Although we have been accustomed to a certain level of partisanship in Congress, Professor Stone pointed out that the nomination process for Supreme Court Justices has remained in large part a bipartisan process. Again, people may vote differently, but as a member of the Judiciary Committee and a relatively new member in confirmation processes for both Justice Kagan and Justice Sotomayor, those hearings were very civil. At the time, Senator Sessions was the ranking member and Senator Leahy was the chair. At those hearings, people asked the questions they wanted to. They went on for a number of days. Then we had a final vote, and then we came to the Senate and all was done. As we know, among the Justices currently serving, the longest time from the nomination to the confirmation was actually 99 days; that was Justice Thomas.
So we have always had a process that has worked. And while the result has, sadly, become more partisan--although there have been a number of Republicans who voted for the recent nominees, it has been more partisan over time. When we look at the unanimous vote Justice Kennedy got, the process itself worked, and that is very important to the functioning of the Senate.
The fact is, we may have a very difficult atmosphere around us politically and sometimes right here in this Chamber, but we have tried to keep our dignity and move forward with our processes, and we find ways to work together and we treat each other with respect. For me, that is a lot about what this is about, this process for a nominee. Yes, it is about what the Constitution says. Yes, it is about respecting history. Yes, it is about not leaving a vacancy on the third pillar of our government when, in fact, our only job as Senators is not to determine what happens in those cases or what the individual decisions are, but it is to fund that Court and make sure that vacancies are filled in our advice and consent function. But it often goes beyond all of that for me. It is about how we function as a body, that we keep to our processes, that we move legislation, that we move nominees, and that we respect our traditions, we respect the Senate, and we respect each other.
Looking beyond the constitutional duties of the Senate and the historical precedent of the Senate considering Supreme Court nominees, we have had the opportunity to hear from our panel, as I mentioned, as well as from a number of others, about the importance of filling a vacancy on the Supreme Court.
Professor Greene, whom I mentioned before, and others noted that this inaction could leave the Court for two full terms without the ability to resolve closely contested cases. They don't get the easy cases on the Supreme Court. That is not why they are there. That is not why they are called the Supreme Court. They get the tough cases. They get the cases in the gray area. When the lower courts are in disagreement and can't figure out what to do, they are the decisionmaker.
Professor Greene went on to say in our panel: ``The Supreme Court has multiple responsibilities, but one of its main, core functions is to resolve those disagreements [among the lower courts], and [this vacancy] leaves the law in a state of uncertainty.''
The people of this country have enough uncertainty to deal with. Of course, because of our democratic functions, we do not know who our next President will be. There is a lot of blame and a lot of finger- pointing going on throughout our political system right now. There is a lot of uncertainty. There is uncertainty with the way our laws have worked. But one of our jobs is to put some certainty in people's lives. We did that with the budget at the end of last year. We did that with the Transportation bill last year. We did that with a number of pieces of legislation that were passed on a bipartisan basis. Now it is our job to not leave the entire legal system in a state of uncertainty.
Former Justice Sandra Day O'Connor has also spoken out. When asked about Republicans seeking to wait a year until considering a nominee, she said: ``I don't agree. I think we need somebody there to do the job now and let's get on with it.''
In fact, former President Ronald Reagan, who nominated Justice O'Connor to the Supreme Court, said in 1987: ``Every day that passes with a Supreme Court below full strength impairs the people's business in that crucially important body.''
He made that statement around the same time he nominated Justice Kennedy, who was confirmed, as I noted, unanimously by a Senate controlled by the opposite party in the last year of a Presidency. That is our closest and most recent example--confirmed in the last year of the Reagan Presidency by a Democratic Senate, with a Republican President.
We now have a Democratic President who is not running for President again--he can't--who is in the last year of his Presidency, with a Republican Senate.
The critical importance of filling this seat is clear, and it is not something we can wait on for over a year. Not since the Civil War have we had a vacancy for over a year. And, may I add, there is plenty of time for the Senate to consider and confirm the nominee. Is it convenient? No, it is not convenient. There is a lot going on. It is an election year. Things happen. Unexpectedly, Justice Scalia died. And many people who knew him well, such as my law professor in Chicago, miss him. But he died, and that triggered a duty on the part of the President and on our part.
The Senate has taken an average of only 67 days--about 2 months--from the date of the nomination to the confirmation vote since 1975. This means that if the President offers a nomination this month, that nominee should receive a vote in the Senate by Memorial Day. If for some reason that doesn't happen and the hearings take longer than we think, I would put one other day forth: We could finish this by the Fourth of July. For those who love the Constitution, that is certainly a good holiday and end date.
Looking at the text of the Constitution, the precedent of the Senate, and the importance of the circumstances, the matter is clear: It is the duty of the Senate to thoughtfully consider the President's nominee to the Supreme Court, and anything less than that disregards our oaths of office.
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