Comprehensive Addiction and Recovery Act of 2015

Floor Speech

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Mr. LEE. Mr. President, the opening words to the preamble of the Constitution of the United States are familiar to all of us: ``We the People.'' But what do those words mean?

It was ``the People'' who established the U.S. Constitution. We established, among other things, the Senate in article I, section 1, of the Constitution. It is for ``the People'' that my colleagues and I, along with every other public official across these United States, now serve.

And it was on behalf of ``the People'' that the Constitution established ``one supreme Court,'' consisting of judges appointed ``by and with the Advice and Consent of the Senate.''

Since the tragic passing of the late Justice Antonin Scalia, there has been a great deal of debate about this particular provision of the Constitution. But there should be no controversy. The text of our founding charter is clear.

The President has full and complete power to nominate individuals to the Supreme Court, and the Senate has full and complete power to reject or confirm the nominee. It is as simple as that. Indeed, the Senate retains complete discretion with respect to whether it should even consider--much less accept or reject--Presidential nominees.

This should not be controversial. It is how virtually every student of the Constitution--and how nearly every Member of Congress--has understood the Senate's power of advice and consent for the past 228 years since the Constitution was ratified.

Senator Harry Reid said in 2005: ``Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote.''

Senator Pat Leahy in 2003 acknowledged that the power of ``advice and consent'' included the power to withhold consent.

Then-Senator Joe Biden in 1992 argued from the floor of this Chamber that the Senate should refuse to consider a Supreme Court nominee until the people had spoken in the upcoming Presidential election.

But now, with the Presidential election in full swing, some of my friends on the other side of the aisle maintain that the opposite is true. Some argue instead that the Senate is constitutionally obligated to hold hearings and to vote on any candidate President Obama might eventually nominate to replace Justice Scalia on the Supreme Court. I respectfully dissent.

If this a-textual and a-historical account of the Constitution were accurate--and it is not, but if it were--then prior Senates violated the Constitution when they did not cast up-or-down votes on Supreme Court nominees. Even the Standing Rules of the Senate would be themselves suspect under this theory, contemplating as they do that ``[n]ominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President. . . . ''

Neither does the prospect of a temporary eight-member Supreme Court raise any significant constitutional concern or even any significant pragmatic concern for the Supreme Court of the United States.

For instance, during the Supreme Court's 2010-to-2011 term, the Court decided over 30 cases with 8 or fewer Justices participating, almost entirely as a result of recusals arising, as they often do in this circumstance, from Justice Kagan's nomination. Similarly, following the retirement of Justice Powell in 1987, the Court acted on 80 cases with 8 or fewer Justices. In short, the sky does not fall when the Court operates with only eight Justices. As Justice Breyer recently stated, the work of the Court ``[f]or the most part . . . will not change.''

Now, we have to remember that any Supreme Court nominee made by President Obama would not be seated until weeks before the people choose the next President. Let me explain what I mean by that. Even if the President of the United States were to nominate someone today to serve on the Supreme Court of the United States to replace Justice Scalia, using historical averages, under any calculation of the amount of time that it typically takes to confirm a Supreme Court Justice, that confirmation could not be completed until after the Supreme Court is scheduled to have heard its last oral arguments for this term--the term that began in October of 2015. What does that mean? Well, it means that for the rest of this year, the Justice couldn't participate in cases being argued this year. What that also means is that by the time the Court resumes its work and begins its next session starting in October of this year, we would be just weeks before the next Presidential election. Yet that would be the first moment at which any newly confirmed Justice would start hearing cases being argued before the Court--cases being argued on their merits for consideration before the Court--just weeks before the next Presidential election.

Consider also that since the nomination of Justice Scalia to the Supreme Court in 1986, nearly 30 years ago, it has taken more than 70 days, on average, for the Senate to confirm or reject a nominee after that nominee has been submitted to the Senate for its advice and consent.

So, again, based on that historic average, even if the President nominated somebody today and assuming that nominee were confirmed, that individual would not be seated in time to hear or rule on any of the cases the Court is considering on the merits for its docket this year, and that would, of course, mean that the next time arguments were heard, the first time this particular Justice could participate in such arguments on the merits before the Court would be just weeks before the Presidential election.

This is a lifetime appointment to the highest Court in the land--a Court that considers not only the interpretation of Federal laws, statutes, and regulations in operation within the Federal Government, but also the very meaning of the Constitution itself. In light of the fact that this is a lifetime appointment to that Court and in light of the fact that the people are about to speak this November to decide who ought to occupy the Oval Office, we should, in respect and deference to the people of this great country, wait until the American people have spoken. They deserve a voice.

In my view, the future of the Supreme Court is now at stake, and the election for our next President is also, of course, well underway already. So it is the people who should determine what kind of Supreme Court they wish to have.

Now, the President is entitled, of course, to discharge his own constitutional authority to nominate. No one can take that from him. That belongs to him. But the Senate is equally entitled to withhold consent and to protect the people's voice. We have to remember that it was considered at the Constitutional Convention the possibility that the Senate would itself have the exclusive power to nominate executive branch officials. It was also suggested that the Senate be given a veto power over the President's appointment prerogative. Neither of those ended up in the Constitution. Instead, what ended up in the Constitution, based, I believe, on the Massachusetts Constitution, was a shared power--one in which the President has the power to nominate but does not have the power to appoint, unless or until such time as the Senate chooses to grant its advice and consent and thereby confirm a nominee put forward by the President.

As James Madison wrote in The Federalist Papers, ambition must counteract ambition, and the people should decide.

Thank you, Mr. President.

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