Filling the Supreme Court Vacancy

Floor Speech

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Mr. DURBIN. Mr. President, several weeks ago, the untimely passing of Supreme Court Justice Antonin Scalia created a vacancy on the Supreme Court, which now has only eight Justices. It called into question the constitutional responsibility of the President of the United States when such a vacancy exists and the constitutional responsibility of this Senate.

This morning in the Washington Post, there was speculation about six possible nominees the President could send to the Senate. It was speculation in the paper, and we don't know if any one of those would actually be the nominee suggested by the President, but it is very obvious--and having spoken with the President personally on this issue, I know he is carefully weighing the options.

Why will the President move forward on this nomination? Because the Constitution requires it. In article II, section 2, it says the President shall appoint a nominee to fill a vacancy on the U.S. Supreme Court--shall; not may, shall appoint--and the Senate shall perform its advice and consent duties with respect to that nomination. So there are two constitutional responsibilities: for the President to suggest a nominee and for the Senate to act on that nominee.

There have been instances in American history where argument could be made that that constitutional responsibility should be ignored or at least delayed. One that comes to mind dates back to 1942. On October 3, 1942, a vacancy arose on the Supreme Court of the United States. On that day, Justice James Byrnes on the Supreme Court resigned his seat to become Director of the Office of Economic Stabilization in the Roosevelt administration.

On January 11, 1943, President Roosevelt nominated Wiley Rutledge, a Kentucky native and former dean of the University of Iowa College of Law, to fill that vacancy. At this point in 1943, the United States was fully engaged in the Second World War. When the President sent up this nomination, battles were raging in Europe, Asia, Africa, and in the Atlantic and the Pacific. It was unclear whether we would prevail or the enemy would prevail. Each day brought alarming, stunning news about developments in the war.

Three days after making his Supreme Court nomination, President Roosevelt flew to Morocco to join Churchill and de Gaulle at a Casablanca conference on the future of the war. At this conference, the Allies coordinated their strategy against the Axis powers and decided to launch an offensive in Sicily and in Italy.

On January 27, 1943, American bombers from the Eighth Air Force conducted the first American air raid over Germany. On January 30, Japanese aircraft torpedoed and sank a cruiser named the USS Chicago in the South Pacific. Sixty-two men lost their lives. Over a thousand survived due to a daring and swift rescue.

The Nation was clearly engaged in war. There was every reason in the world for the President and even the Senate to say: This is no time to talk about a Supreme Court vacancy. Instead, the President and the Senate, even in the midst of World War II, understood their obligation under the Constitution. The Senate Judiciary Committee held a hearing for Rutledge on January 22, 11 days after his nomination had been sent to the Hill by President Roosevelt. The committee reported Rutledge's nomination to the floor on February 1, and he was confirmed by the full Senate on February 8, 1943, 28 days after his nomination.

Mr. President, I wanted to put this set of facts on the record to make it clear that there is absolutely no excuse for what the Senate Republicans are doing with this vacancy. There is no excuse for the Senate Republicans to ignore their constitutional responsibility, a Constitution which they have sworn to uphold and defend. We are not in the midst of a world war; we are in the midst of a Presidential campaign. And that in and of itself explains why Senator McConnell, just hours after the announcement of the death of Antonin Scalia, made it clear that the Senate would not accept its responsibility under the Constitution to fill this vacancy on the Supreme Court.

It is a sad reality that the Republicans have made this decision to leave the Supreme Court for over a year with this vacancy. When was the last time the Senate left the Supreme Court with a vacancy for over a year? It goes back to the Civil War, when we were at war with ourselves, with thousands being killed on a daily basis. It was in that turmoil that we left a vacancy on the Supreme Court for over a year.

Now the Senate Republicans point to the turmoil of a Presidential election campaign as their reason for not accepting their constitutional responsibility. They make a vacuous argument that we should wait and pick a new President and let this new President, in his next term or her next term, fill this vacancy. Well, that is an empty argument because in the year 2012, in November of 2012, there was a Presidential election. The two major party nominees were, of course, President Obama running for reelection and Mitt Romney running on the Republican side. In that election, the American people made a clear choice. By a margin of 5 million votes, they reelected President Barack Obama, and they reelected him for a 4-year term. So it turns out that even in this year of 2016, Barack Obama is still the President of the United States. This may come as news to those on the Republican side of the aisle, but he was reelected for 4 years by a 5 million-vote margin, and their refusal to give this President due consideration of his nominee is a rejection of that verdict of the American people in that election.

So for the first time in history, we find a nominee presented by the President about to come to Capitol Hill, and the promise of the Senate Republicans? They will not even hold a hearing, will not even consider this nominee, and won't bring it to a vote. In fact, Senator McConnell went further. He said he would refuse to even meet with any nominee sent by the President. That is unheard of, unprecedented, uncalled for, and an embarrassment to this institution of the United States Senate.

I call on the members of the Senate Judiciary Committee, on which I am proud to serve, to step back and reassess the letter they signed 2 weeks ago. It was a letter accepting Senator McConnell's strategy, saying they would not do their job. They would, in fact, walk away from their job, walk away from their constitutional responsibility. I would hope they would realize they are leaving a mark in history which is indefensible, a mark in history which is unprecedented, and one which sadly will leave the Supreme Court with only eight Justices.

The American people have spoken. They have chosen the President. The President has accepted his constitutional responsibility. The Senate, under Republican leadership, can do no less.

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