Comprehensive Addiction and Recovery Act of 2015

Floor Speech

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Mr. LANKFORD. Mr. President, on February 13, 2016, the Supreme Court lost one of its Justices, our Nation lost a true legal giant.

Justice Scalia was described by colleagues as ``extraordinary,'' ``treasured,'' and ``a stylistic genius.'' Beyond his unwavering dedication to upholding the originalist viewpoint of the Constitution, Justice Scalia was also wholeheartedly committed to his family. He was a husband, father of 9, and grandfather to 36 grandchildren.

His son Paul said of him during his homily:

God blessed Dad with a love for his family. . . . He was the father that God gave us for the great adventure of family life. . . . He loved us, and sought to show that love. And sought to share the blessing of the faith he treasured. And he gave us one another, to have each other for support. That's the greatest wealth parents can bestow, and right now we are particularly grateful for it.

Justice Antonin Scalia was nominated to the Supreme Court in 1986 by President Reagan and was confirmed by the Senate in a unanimous vote. While his time on the Court often led to some criticism of his legal opinions and his very colorful dissents, he remained respected by his colleagues, even those of the opposite end of the judicial spectrum. This is a sign of true character--to have an open, honest debate about a particular issue while respecting the individual person holding an opinion different from your own.

Justice Scalia said:

I attack ideas. I don't attack people. And some very good people have some very bad ideas. And if you can't separate the two, you gotta get another day job.

The sentiment was best portrayed through his friendship with Justice Ginsburg. As one of his friends, she said:

We are different, but we are one. Different in our interpretation of written texts. One in our reverence for the Constitution and the institution we serve. From our years together on the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation.

Justice Scalia was known for his wit and his sarcasm in his writings, famously referring to legal interpretations of his colleagues as ``jiggery-pokery,'' ``pure applesauce,'' and ``a ghoul in a late horror movie.'' Yet it was these same criticisms that Justice Ginsburg said nailed the weak spots in her opinions and gave her what she needed to strengthen her writings.

Justice Scalia represented a consistent, constitutional voice on the Supreme Court. Just as the Constitution is the pillar of our legal system, so too is his affirmation to this foundational document of our Nation. He said:

It is an enduring Constitution that I want to defend. . . . It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution, as opposed to what people today would like.

Justice Kennedy said:

In years to come any history of the Supreme Court will, and must, recount the wisdom, scholarship, and technical brilliance that Justice Scalia brought to the Court. His insistence on demanding standards shaped the work of the Court in its private discussions, its oral arguments, and its written opinions. Yet these historic achievements are all the more impressive and compelling because the foundations of Justice Scalia's jurisprudence, the driving force in all his work, and his powerful personality were shaped by an unyielding commitment to the Constitution of the United States and to the highest ethical and moral standards. Filling the Supreme Court Vacancy

Mr. President, with Justice Scalia's passing, we have a vacancy on the Court to fill.

The question is, When?

I would submit, with only months left until the Presidential election, that we should let the people decide.

I have heard over and over for the past 7 years that elections have consequences, but apparently some people seem to only think elections have consequences on Presidential elections. The American people elected a brand new Senate in 2014 because of their incredible frustration with the operation of the previous Senate and because of the direction that we are now heading under this President.

I have heard this argument for years: The President should be able to do what he wants. He is the President. But may I remind everyone of a document in our National Archives called the U.S. Constitution, which gives divided power to our Nation. The President is not over the Senate, not over the House, and not over the Supreme Court.

Hyperbole of this has been overwhelming to me in the debate of the past few weeks. I have heard that unless we replace Justice Scalia right now, we will ``shut down the court.'' I have heard on this floor people say that if we don't replace Justice Scalia immediately, it is ``dangerous,'' it is ``unprecedented,'' it is unheard of. I have heard: ``Do your job''--a failure to do your duty. I even heard one Senator say: ``The Constitution says the President shall appoint and the Senate shall consent.''

Well, let me show you article II, section 2 of the Constitution where that comes up. It says that the President ``shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate''--the President shall nominate. That is his constitutional responsibility. But it is not the constitutional responsibility--it never says the Senate shall give consent to the President. Why? Because the Constitution gives the role of selecting a Supreme Court nominee in a 50-50 responsibility between the Senate and the President of the United States.

The President shall nominate; that is his responsibility. But that only moves forward with the advice and consent of the Senate. There is no ``shall give consent.'' There is no requirement how it moves.

In fact, Alexander Hamilton in The Federalist Papers, on this very issue, said that the ``ordinary power of appointment is confided to the President and Senate jointly.''

This is a 50-50 agreement. What we are facing right now are incredible attacks on the chairman of the Judiciary Committee because he dares to do what Vice President Biden, Senator Schumer, and Senator Reid recommended years ago. I even heard that we shouldn't listen to the words of Vice President Biden. I would understand why people would say that, because when you go back to Vice President Biden's words, when he was a Senator and chairman of the Judiciary Committee, in the same spot Chairman Grassley is in now, this is what, at that time, Senator Biden said. Senator Biden, chairman of the Judiciary Committee, arguing on this same issue, said: ``Arguing from constitutional history and Senate precedent, I want to address one question and one question only: What are the rights and duties of the Senate in considering nominees to the Supreme Court?''

This is from Vice President Biden--then Senator Biden:

Some argue that the Senate should defer to the President in the selection process. They argue that any nominee who meets the narrow standards of legal distinction, high moral character, and judicial temperament is entitled to be confirmed in the Senate without further question. . . . Apparently, there are some in this body and outside this body who share that view.

I stand here today to argue that opposite proposition.

This is from Vice President Biden. He stated at that time:

We have quashed the myth that the Senate must defer to a President's choice of a Supreme Court Justice, the men and women at the apex of the independent third branch of Government.

Can our Supreme Court nomination and confirmation process, so wracked by discord and bitterness, be repaired in a Presidential election year?

Vice President Biden, as Senator Biden, said:

History teaches us that this is extremely unlikely. Some of our Nation's most bitter and heated confirmation fights have come in Presidential election years.

The Senate too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year.

Vice President Biden at that time said this:

It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.

He said, instead:

It would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.

This past week Senator Reid came to the floor to discuss Senator Grassley and what he is doing, which is exactly what then-Senator Biden recommended to be done, and he made this statement. Senator Reid said this past week:

Last Thursday, the senior Senator from Iowa addressed the Conservative Political Action Conference, CPAC, which took place here in Washington. In his speech to them, here is what Senator Grassley said: ``I feel it's about time that we have a national debate on the Supreme Court and how it fits in with our constitutional system of government.''

Then Senator Reid continued:

The chairman of the Judiciary Committee is suggesting that we reevaluate the Founding Fathers' work, reevaluate the Constitution of the United States, and change the Constitution of the United States. Why is Senator Grassley debating what the Constitution makes clear? The Senate must provide its advice and consent on nominees appointed by the President to the Supreme Court. Think of the irony. Justice Scalia was a strict constitutionalist. Yet now, in the weeks following his death, Senator Grassley wants to throw out the Constitution just because President Obama gets to pick Scalia's replacement.

That is what Senator Reid said this week.

Let's look at what Senator Reid said in 2005 on this exact same issue. In 2005, on this floor, Senator Reid said: ``The President of the United States has joined the fray to become the latest to rewrite the Constitution and reinvent reality.''

This is speaking of President Bush at the time. Senator Reid continued, ``Speaking to fellow Republicans Tuesday night, two days ago. He said that the Senate `has a duty to promptly consider each nominee on the Senate floor, discuss and debate their qualifications and then give them the up-or-down vote that they deserve.' Referring to the President's words--duty to whom? The duties of the Senate.'' This is from Senator Reid in 2005:

The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say the Senate has a duty to give Presidential appointees a vote. The fact was even acknowledged by the majority leader that a vote is not required. Senator Byrd asked the majority leader if the Constitution accorded each nominee an up-or-down vote on the Senate floor. The answer was no. Senator Frist was candid. The answer was no. The language was not there, Senator Frist said. He is correct. Senators should read the same copy of the Constitution Senator Frist had memorized.

Continuing with what Senator Reid said:

It is clear that the President misunderstands the meaning of the advice and consent clause. That is not how America works. The Senate is not a rubber stamp for the executive branch.

So earlier this week, Senator Reid chastised Senator Grassley, saying he wants to rewrite the Constitution. In 2005 Senator Reid stood on this floor and encouraged all Members to read the Constitution--that it nowhere requires that we take an up-or-down vote. So I don't know which one to take on this--the current statements from Senator Reid or the previous statements from Senator Reid--because they are in direct contradiction.

Senator Schumer, on July 27, 2007, speaking about the last 18 months of President Bush's term as President, said:

For the rest of this President's term and if there is another Republican elected with the same selection criteria let me say this: We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts; or Justice Ginsburg replaced by another Alito.

Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances.

I have also heard: Don't look at the words but the actions. Senator Reid, Senator Schumer, and, when they were here, Senator Obama and Senator Biden have all filibustered Supreme Court nominees when they were Senators--all four of them have. Suddenly, now this is a dangerous idea that will shut down justice and is completely unconstitutional, and there are shouts of ``Do your job'' that come from the same Senate leaders who blocked untold nominations from untold Republican Presidents and didn't allow amendments on basic bills.

There is a lot of emotion in this body. I get that. There are a lot of politics in this process. I would hope to bring some facts to light and to turn down the hyperbole and all the rhetoric. So let me bring some basic facts to this.

The last time a Supreme Court vacancy arose in an election year and the Senate approved a new appointee to the Court in that same year was 1932. Since there is no nominee right now, it would not be possible to fill the vacancy in time for that individual to hear cases in the spring session of the Supreme Court. That means any nomination selected now would only be able to serve--in our colleagues' arguments--in the fall, which is a much shorter session of the Supreme Court, before this President actually leaves. So we are talking about the final session at the end of this fall--a very few number of cases.

Justice Stephen Breyer, just a few weeks ago, stated this about the passing of Justice Scalia:

We'll miss him, but we'll do our work. For the most part, it will not change.

The Supreme Court is open and is working this week. In fact, the Court hasn't halted at all. The Court has heard 10 cases already since Justice Scalia's passing, and they are continuing to release decisions.

It is a myth that there needs to be an uneven number of Justices for the Supreme Court to actually work. In the past 6 years, 80 percent of the cases were decided 6 to 3 or greater. So it is a small minority of the cases that ever get to a 5-to-4 decision. And we don't know that a 5-to-4 would end up not being a 5-to-3 at this point.

Eight members can operate the Court. In fact, the Constitution doesn't even give a specific number to the Justices. How many Justices are on the Supreme Court has always been a decision of the President and the Congress together. The first Congress, for example, enacted the Judiciary Act of 1789, which stated the Supreme Court consists of ``a chief justice and five associate justices.'' If you are counting right, that is six Justices on the early Supreme Court.

The size of the Court varied during the 19th century, with the Court shrinking to 5 Justices for a while, following the passage of the Judiciary Act of 1801, growing to as large as 10 Justices in 1863. Then in 1869, Congress changed the number to nine, where it has remained.

But the Court doesn't need nine Justices to actually decide a case. In fact, Congress has established the quorum requirements to be only six. If the Court ends in a tie decision, 4 to 4, or in the case of six justices, 3 to 3, the Court will not write an opinion but will affirm the lower court, or it will ask for a reargument of the case.

In other words, the Court is already set up to function and is functioning, and it will continue to function with eight people.

I would say what is really happening is that the Democrats, who implemented the nuclear option while they were leading the Senate and packed all the lower courts, urgently want to be able to pack the Supreme Court as well. That will not happen.

We will also not allow a recess appointment, as has been floated multiple times in the media--the President will just do a recess appointment and go around us. The Senate chooses when the Senate is in recess, not the President. So we can do this: We can remain in continuous session without recess to prevent a recess appointment by this President through the rest of this year. Many of my Republican colleagues and I have already agreed to be in Washington every 3 days for the rest of this year to gavel in this body in pro forma session so this President cannot put in a recess appointment judge.

Ironically enough, this right of the Senate was approved by the Supreme Court just a few years ago by a 9-to-0 ruling when this President tried to force in new members on the National Labor Relations Board through a recess appointment, and this Supreme Court kicked those out, saying the President cannot choose when the Senate is in recess.

Our Nation faces really big issues: accelerating debt, threats from terrorism, a struggling economy, major education, and health care reform issues. This is a moment when the people of the United States should speak about the direction of our Nation. We are still a nation of the people, by the people, for the people. And for the next President and for the next Supreme Court nomination, we should let the people decide.

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