Filling the Supreme Court Vacancy
Floor Speech
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Mr. TILLIS. Mr. President, I appreciate the opportunity to come to the floor and talk a little about the ongoing dialogue we are having on the Supreme Court nomination.
Before I start this speech, I wanted to comment on something for those who think all we do is fight here. I think the Presiding Officer was at our bipartisan lunch. I think it is a great opportunity. So often we see the debate on the floor and the dialogue in the committee rooms, but we take the opportunity every month or so and Democrats and Republicans come together and we enjoy each other's company. We talk a little about policy but more about the folks back home. So I just wanted to let the American people know that because we happen to have differences, it doesn't mean we don't like and respect so many of our colleagues.
Today, though, I am talking about something that is a point of contention between Democrats and Republicans, and it relates to the open Supreme Court seat as a result of the tragic passing of Justice Scalia. Originally, I was going to come to the floor and provide a speech I had prepared, but I was in the Judiciary Committee today and I decided--probably against my staff's wishes--to deviate a little from the script and to talk about some of the facts that were put forth in the Judiciary Committee today.
One of the arguments we hear from Members of the Democratic Party is that somehow the Supreme Court has been shut down. That couldn't be further from the truth. Actually, since the passing of Justice Scalia, there have been some 12 arguments heard in the Supreme Court and 5 opinions. There will be several more.
As a matter of fact, over the course of history there have been a number of instances where the Supreme Court has had Justices recuse themselves or Justices go on a leave of absence for another duty. So there have been a number of instances where the Court continues to function just fine with eight, and sometimes even fewer than eight, Justices active in any given opinion. So to say for some reason until we make an appointment to the Supreme Court that the Supreme Court is going to cease to function defies the facts.
As a matter of fact, in the October 2014 session--the Supreme Court has two sessions, the first half of the year and the second half of the year. In October of 2014, there were 72 arguments heard before the Supreme Court. There were only 18 of them that actually were divided along ideological lines within the Court. So three-fourths of all the cases in 2014 were actually settled with significant numbers of people joining together to render an opinion. So the Court is working just fine, and it will continue to work just fine.
I would also argue that the idea put forth by some Members that the Supreme Court is suddenly going to be shut down for a year defies logic and history. The Supreme Court is already in session. They will go through probably the end of June or the beginning of July. There is no possible way, under normal circumstances, that we would have time to appoint a Supreme Court Justice who would be participating in this term. So what we are really talking about is the October term. If the October term of this year bears any resemblance to the October term of 2014, there may be 5 or 10 cases where the 9-member Court would be material. The vast majority of them are going to move through. That is why this idea of shutting down the third branch of government is disingenuous and really supporting a political agenda and less about whether the government is functioning properly.
The other thing I wanted to talk about before I get into some of the reasons I do not support nomination proceedings going through under President Obama is related to some history. Before I get to the history that specifically relates to the constitutional obligation of the Senate, the Senate rules, and maybe some of the positions that have been taken by Members of the minority in the past, I also want to talk about one other area that concerns me in this dialogue.
There has been a discussion about the backroom meetings, making the decisions. Well, members meet oftentimes--we tend to meet the majority of the time--in public settings, but members got together and we decided to come up with a policy that was a clear position that the majority of the members of the Judiciary Committee--and the majority of the members are today Republicans--that we were going to take on the nomination. We all agreed--all 11 of us--that we are not going to move forward with the nomination.
They can call it a backroom deal, but whether you would argue that is an improper practice, what I found interesting is that members of the Judiciary Committee who brought this up did something that I think was a profound show of disrespect to this institution. It happened a few years ago, when in a back room the leader of the then-majority, Senator Reid, convinced all the members of the Democratic conference to vote on the nuclear option. The nuclear option is--well, it is great I guess for TV--but structurally the nuclear option is that throughout decades there was a 60-vote threshold for moving nominations through the Senate unless you had consensus to hold it down to 51 votes. In a back room, the then-majority leader, Senator Reid, convinced his conference to come to this floor and break the rules to change the rules in order to prevent the minority from being able to weigh in on judicial nominations and a number of other nominations. In fact, after that rule was passed, after that decision was made in a back room and after those folks came to the floor and broke the rules to change the rules, they ended up confirming judges without any input from the then-minority Republicans.
So when people want to stand up here and say that somehow what we did was different, this is one nomination. This is a decision we made about one nomination, but we have a group of people--every single person on the Judiciary Committee, in fact, who are in the Democratic conference, voted to deny the minority from having what has been a decades-old tradition in the Senate to have the minority weigh in on nominations.
I would now like to get to some of the other discussions. First off, we have to recognize we are in the throes of the primary season for the Presidential nomination. It would be very difficult to live in the United States and not know a little about the primary that is going on. The people are in a position where, over a very few short months, they are going to make a decision. They are going to voice their vote, and I, for one, think the people should be allowed to weigh into this decision. I do believe many of the Senators on the other side of the aisle have felt the same way. In fact, I will go through a couple of quotes where they made it very clear. In fact, they are very trained and very articulate and can probably voice their position--which now is my position--better than I ever could.
One thing that comes up in this discussion is our constitutional obligation, and that is the obligation to advise and consent. Keep in mind, the advice and consent is not a constitutional obligation for the Senate to rubberstamp the decisions of the President. Quite the contrary. The whole idea of the three branches was to have certain checks and balances in place. So there absolutely was no concept on the part of the Founding Fathers to say when the President makes a decision, the Congress will rubberstamp that decision. We then have an equal authority to determine whether that nomination will come to a nominations process or we will simply decide not to take up the nomination.
Now, a lot of people think that is a new concept, but the reality is, it is a concept that has been in place for many years in the Senate rules. For people to say we always dispose of nominations in the term we are in defies the existence of this rule, which simply says: Should the Senate choose not to take up a nomination, then the next President will put forth another nomination for consideration.
Again, I think people are finessing what our responsibilities are and whether this is really something different or something that wasn't anticipated by the people who have come before us and who established the rules that govern the Senate.
I want to talk a little about what I think must be a very uncomfortable place for some Members of the minority to be; that is, their own history on the current situation in the Senate. We are in the middle of a campaign. We are in the middle of a tough campaign on both sides of the aisle, whether it is the Democratic primary or the Republican primary. People are engaging in a way they haven't in many years. Turnouts in many of the primaries have been more significant than they have been in many years. People are watching. So we have an opportunity to educate the people on this very important choice in terms of a Supreme Court nomination.
I, for one, think the nomination should be instructed by the vote that is cast in November for the President, and, actually, for that matter, the Senate congressional elections. Some people say: Well, the people have spoken and President Obama was reelected to a second term. That is true. And 2 years later the people spoke again, and I was elected to the Senate and Republicans were brought to a majority. So the people spoke in a different way. Just a few months from now we will get the most up-to-date read of where the American people are, who they want to lead the country, and who they want to nominate as the next Supreme Court Justice.
This quote has been famously reported in the press, and I couldn't say it any better than then-Senator Biden did. He talked about the need, at a certain point in time during the political process, to set things aside, let the people speak, and let that be instructive to the Supreme Court nomination.
Incidentally, I know the Vice President, at the time he made this quote, was the chairman of the Judiciary Committee, the position Senator Grassley currently holds. He was basically saying what Senator Grassley has said and that I fully support. So I think Vice President Biden was right the first time. He seems to be stepping back on his words, but I don't think his words can be parsed. They were pretty well-articulated right here on the Senate floor.
Then we come to the minority leader. We now have the minority leader and others coming to the floor talking about what our constitutional duty is, but the minority leader came to this floor--right over there, not very far from where I am now--and he said:
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.
I agree with Senator Reid. And finally, we have one from my good friend from New York, Senator Schumer. Senator Schumer is a very articulate man. He is a practiced attorney, and there are many aspects of the man I admire. In another instance, in a very passionate speech given--it is on YouTube so you can all watch it--he has taken a very similar position; that circumstances get to a point to where maybe we need to hold nominations until we get the information we need that is instructive to the future nomination or the future vote or consent matter.
I agree with Senator Reid's 2005 statement, I agree with Senator Biden, Chairman Biden, now-Vice President Biden's statement of 1992, and I agree with Senator Schumer's of 2007.
My colleagues, it is time for us to move on and recognize the position we have taken is a position that is going to stand. We can go to the American people back in our States, States like North Carolina, where we have a primary next week, and I will be traveling all across the State tomorrow and Saturday, back again on Monday. I will explain to them why I have taken the position I have, and when we do, all the games that are being played now, with one poll saying one thing or another poll saying another thing, we can cut through the noise and talk about what we are really trying to do.
What we are trying to do is to give the people an opportunity to voice where they want to take the direction of the Supreme Court, where they want to take the Nation in terms of the Presidency, and where they want to take the Nation in terms of the Congress. I am willing to bet on the people's voice, and I am looking forward to it being instructive to the ultimate decision I make about a Supreme Court nominee.
I love getting letters from folks in my State, so the last thing I leave you with is a quote from a lady named Lois from North Carolina. I think she does a good job of summing up my own feelings. She said:
I really wish the discussions and hoopla could have waited a little longer after Judge Scalia's passing, but we are having the back and forth of what to do. As your constituent, I'm in agreement with the committee position of waiting until after we have a new President. Word out of the White House to the Senate is: Do your job. Well, I, for one, think you are doing your job. It's called checks and balances.
In the coming weeks, I am looking forward to continuing this debate. I want to especially note that Senator Grassley is a wonderful Member of the Senate. He has support and admiration from both sides of the aisle. I appreciate his leadership on this matter. I appreciate Leader McConnell's leadership on this matter. I look forward to getting back to North Carolina and hearing what the people would like for me to consider as we move forward with the nomination process.
I thank the Presiding Officer.
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