Comprehensive Addiction and Recovery Act of 2015
Floor Speech
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Mr. DURBIN. Mr. President, the year was 1936. President Franklin Roosevelt had just been reelected with an overwhelming majority, and he decided he had had enough of the U.S. Supreme Court. They had been striking down some key pieces of legislation in his New Deal package. So he came up with a bold plan in February of 1937. That bold plan was to add enough new Justices to the Supreme Court to tip the balance his way.
He presented this plan to change the Supreme Court for his political purposes to a Democratic Congress and a Democratic U.S. Senate, believing, with his big reelection majority and the fact that most of the Members of Congress had supported his New Deal agenda, that they would stand by him when it came to changing the Supreme Court so that it would start ruling his way. He was wrong. What happened then was that Members of the Senate decided to stand up to their President and to stand up for the Constitution.
A little-known Senator from Arizona, Henry Ashurst, was the chairman of the Senate Judiciary Committee. He deliberately delayed the FDR Court-packing proposal to a point where, when it was finally called, it was overwhelmingly defeated.
Think about that in the context of our current debate about filling this Supreme Court vacancy created by the untimely death of Justice Scalia. In that case, in 1937, the Senate Judiciary Committee and its chairman stood up for the Constitution first, over and above even the President of their own political party. This was a popular President; yet they believed the Constitution was more important than any political issue when it came to the New Deal.
So where are we today? We are in a situation where we have a vacancy on the Supreme Court. The Court still continues to hear cases of great historic moment--yesterday, the case involving abortion and I am sure, in weeks ahead, even more controversial issues. It is a Court that is at least limited by the fact that there are only eight Justices. In many instances, this Court is likely to end up with a tie--a decision which doesn't decide the law but leaves it still unresolved.
So what is our responsibility as this Senate at this time as we reflect on the Senate of 1937? Well, we only have to turn to the U.S. Constitution--the Constitution which each of us, each and every one of us as Senators, Democratic and Republican, stood in the well and swore to uphold.
The second article in this Constitution relates to the powers of the Presidency. In this book, it is only three pages, but the people who wrote the Constitution, our Founding Fathers, tried to put in those three pages the critically important elements to make sure that our democracy would continue. They tried to envision the possibilities and to authorize branches of government to do certain things.
In article II, section 2, when it comes to the powers of the President, it says: he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.
Did it say he may appoint? No. The language is explicit. He shall appoint, and with the advice and consent of the Senate, shall fill the vacancies on the Supreme Court.
So what faces us today? An announcement by the Republican leadership, Senator McConnell, within hours of the announcement of the death of Justice Scalia, that for the first time in the history of the United States Senate, for the first time in our Nation's history, the Republicans have announced that they will not only refuse to fill this vacancy, they will not even allow a hearing on a Presidential nominee. And Senator McConnell went a step further and said he will not even meet with a nominee offered by the President to fill this vacancy. That is a clear violation of the constitutional responsibility which this Senate has. The Constitution doesn't require us to approve any nominee, no; it is advise and consent, not consent only. We can certainly vote no if we feel that vote is warranted. But the Constitution is very clear that we can't walk away from our constitutional responsibility when it comes to a vacancy on the Supreme Court.
If the Senate Republicans have their way, this vacancy on the Supreme Court will continue on until the next calendar year. It will be the longest vacancy on the Supreme Court since the Civil War, when this Nation was torn apart. If there was any excuse in those days for not filling the vacancy, there is no excuse today.
There is the argument made: Let the people decide. Let the people decide in the next election who the next Supreme Court Justice will be. But that ignores the obvious: There is a sitting President, elected for 4 years, with the constitutional authority every President has, and one of those authorities is to fill this vacancy on the Supreme Court.
They argue: Well, the people will decide in November what will happen next year. I might remind them that the people decided in the year 2012 by a margin of 5 million votes that Barack Obama would be President of the United States--not for 3 years, not for 3 years and 2 months, but for 4 years. And to argue that he is somehow now unable, unwilling, or cannot be called on to exercise his Presidential authority flies in the face of reality--a reality which most Republicans will readily concede, at least in private.
The Republicans think they are winning this debate. I think they are losing. They think their ``let the people decide'' approach to this is really carrying the day. I think our approach to this--saying to our Republican colleagues: Do your job--is carrying the day.
How is this playing in Peoria, IL? I want to read from an editorial of the February 28 edition of the Peoria Journal-Star:
The most worthless Congress in memory became more so last week, with Senate Republicans doubling down on their decision not to even hold hearings for any Obama nominee to the U.S. Supreme Court to fill the Scalia vacancy.
They went on to say:
Even as awful as Congress is, it's not often that its members combine dereliction of constitutional duty--(see Article II, Section 2)--with political cravenness (the aversion to tough decisions in an election year) in one fell swoop, but so Senate Republicans have here. Not only have they unconstitutionally changed a president's term from four to three years, not only are they renouncing their ``advice and consent'' role, not only are they effectively suggesting the Constitution be amended to popularly elect Supreme Court justices, but even more lame are the lengths Republicans went to in order to rationalize their decision.
No more excuses. The Senate Judiciary Committee and the Senate should do their job. When the President submits a nominee, we should give that nominee a fair and thorough hearing--a fair, respectful, and thorough hearing, as one Republican said over and over again--in full view of the American people and then vote.
A fair warning to my Senate Republicans. They said the American people should decide. They will decide--they will decide in November that the Republicans in the Senate should do their job.
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Mr. DURBIN. I will be happy to yield.
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Mr. DURBIN. I do remember that.
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