America's Small Business Tax Relief Act of 2015--Motion to Proceed

Floor Speech

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Mr. MERKLEY. Mr. President, I rise today to talk about an issue that affects a part of our Constitution. The Constitution begins with these three words: ``We the people.'' You can talk in any townhall across America and ask ``What are the first three words of the Constitution?'' and they will respond ``We the people.'' They know that the Constitution starts with those words written in a super-sized font, because that is really the heart of what our system of government is all about--not ``we the powerful commercial interests,'' not ``we the titans of industry,'' not ``we the richest in America.'' No. ``We the people,'' the citizens, ordinary citizens. Our Constitution, our system of government is set up to honor and respect and address the concerns of ordinary citizens. That is very different from so many other countries where our early residents came from, from across the sea. So those three words capture the spirit of what our new Nation was all about, or, as President Lincoln later summarized, a government of the people, by the people, and for the people.

I have come to the floor periodically to address various issues related to ``we the people,'' related certainly to honoring the spirit of the Constitution. In that regard, this week I am coming to the floor to address the responsibility of our Senate and its advice and consent role under our Constitution.

The President's duty is to nominate a Supreme Court Justice when there is a vacancy. That responsibility is clearly written into our Constitution. The Senate's duty is to consider whether that nominee merits being appointed. In the early ages of our country, as we went from the Revolution of 1776 to the drafting of the Constitution, our Founders were of mixed minds as to how this appointment process should work. Some said the appointments should all be done by what they referred to as the assembly--that is, by all of us in Congress. So the executive branch would have a check on it, but the position would be filled by Congress. Others said: No, no, no, no, that is too difficult. Too much horse trading is going to be going on. The responsibility needs to be vested in the President. That is accountability.

But what happens if the President engages in appointments of dubious merit, people of dubious character, of dubious qualifications? So they came out with this compromise that the President nominates and our responsibility here in the Senate is to determine whether the nominee is of fit character.

One can get a little flavor of this from the writings of Hamilton in the Federalist Papers, Paper No. 76. He writes:

To what purpose then require the cooperation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters.

That is our responsibility--to vet the nominee and to vote upon determining whether the individual is of fit character, and that certainly can be broadly interpreted to include personal characteristics and qualifications for a job that requires specific qualifications. That is our responsibility.

Every Senator here took an oath to the Constitution, pledged to honor their responsibilities here as they are laid out in the Constitution. That is why I am so disturbed that at this moment we have Senators in this body who have said: I am not going to do my responsibility under the Constitution. I am going on a job strike. I don't want to work and do my responsibility under advice and consent. I don't want to do the work of vetting candidates and voting on candidates. I am just going to sit on my hands and sing ``la la la'' instead of doing the work the Constitution requires.

That is unacceptable. To my colleagues who are sitting on their hands and failing to do their constitutional responsibility, I simply say: Do your job.

On March 16 President Obama nominated Merrick Garland to serve on the U.S. Supreme Court. Certainly the President has now fulfilled his responsibility under the Constitution. He put forward a nominee to fill this critical vacancy on the Supreme Court. I certainly look forward to meeting with Merrick Garland, reviewing his credentials, and learning more about his vision for the Supreme Court. That is part of the vetting process. That is something all of us should be doing. Then it will be time for the Senate as a body to act. That means the Judiciary Committee proceeds to collect information on Mr. Garland's background and on his decisions, and then they hold a hearing and members of the committee ask penetrating questions: Why did you say this in a particular opinion? He has a whole record to be examined, and that is what we should be doing right now.

Not since the Civil War have we left a vacancy on the Supreme Court for over a year, but the job strike my colleagues are engaged in today says: We are going to leave this vacancy on the Court. We are going on a job strike for an entire year and not do our responsibility under the Constitution because we just don't want to.

That is a dereliction of duty, and I encourage my colleagues to rethink their positions.

Since 1975 it has taken on average only 67 days to vet and vote on a Supreme Court nominee--just 67 days or a little over 2 months.

There are some folks here in the Chamber who say: Well, this is a unique circumstance because we are in the last year of a Presidency, and therefore we should just wait and leave the Court spot empty for a year. Wait until the election next November and wait for the new President to come in in January and then get a new nominee and hold hearings then.

That argument fails on several accounts. First of all, there is nothing in the Constitution that says one will only do their job in a year, if you will, that is in the first 3 years of the Presidency instead of the fourth year. That is not written in the Constitution. For any of my colleagues who make this argument, I would be happy to read the Constitution to them. Better yet, read it yourselves. Look at the Constitution and our responsibilities under the Constitution. The President is required to nominate in all 4 years, and we here in the Senate are required to proceed to determine whether that nominee is of unfit character or of fit character, and that means vetting and that means voting. The President doesn't get a break in his fourth year and get told to do nothing, and we don't get a break in our sixth year. We are not told that in the sixth year we should wait to make decisions because we have to run for reelection and therefore we should wait until our citizens vote. No. We have a term that runs a full 6 years, and we have a responsibility for the entire 6 years. The President has a term of 4 years, and he or she has the responsibility for the entire 4 years. There is nothing in the advice and consent clause that says that at a certain point in time, we are just not going to do our advice and consent responsibility.

It is conceivable that the Founders could have written into the Constitution that in the fourth year of a Presidency, the Senate will not fill any positions, but they didn't write that into the Constitution, and it would not have made sense for them to have done so because the work of the Court is ongoing and the work of the executive branch is ongoing.

Indeed, if we want any form of precedent, we can look to the recent past. Justice Kennedy, who sits on the Court today, was confirmed in the last year of President Reagan's final term, and he was confirmed under a Democratically controlled Senate. I have not heard a single Member come to this floor and say that if they had been here in that year, they would have advised that we leave President Reagan's nominee hanging, unvetted, not voted on for an entire year, waiting for the next President. No one here made that argument back then, and nobody is making it now. What we are seeing is a purely political effort to pack the Court to politicize an institution that shouldn't be politicized.

From the moment of nomination through the end of this administration, we still have 310 days. The average, after a nomination, to confirm a nomination, is 66 days. In other words, we have five times as many days as needed for the average to confirm. There is no argument that there is not enough time.

A job strike based purely on partisan politics designed to polarize and pack the Court is going to do a tremendous amount of damage to this important institution.

Our Founders laid out in the Constitution a vision of three coequal branches, but, colleagues, if you take the advice and consent power to undermine the ability of the executive branch to operate or the ability of the Court to operate, you will damage in a serious way the quality of the three branches. You will be saying that one branch has the power to derail the ability of the other two to function. That is absolutely, clearly, completely, 100 percent not the vision that was laid out in the Constitution and not the vision that was laid out for advice and consent.

Let me remind you that advice and consent is the responsibility to determine if the nominee is of unfit character. How can we determine if someone is of unfit character if we won't meet with them? How can we determine if someone is of unfit character if we are not willing to review their writings? How can we determine if they are of unfit character if the Judiciary Committee doesn't hold a hearing to actually raise questions and ask the nominee to respond to them? How can we as a body determine and make the decision that someone is of unfit character if we don't hold a vote?

Consider the precedent that is being established and the damage it will do. Let's say for example that by refusing to do their job, my Republican colleagues delay until the next administration comes in. It is a Republican administration, and they get a nominee who they feel has far-right views that they like better than the nominee before us.

By the way, Merrick Garland's views are about as straight down the center as anyone can ask for. He has been praised voluminously by Republicans in the past. Justice Roberts said that if one disagreed with Justice Garland, one would really have to look carefully as to why. A key Member of this body who has been here a very long time said: If someone like Justice Garland was nominated, well, that would be a very reasonable nomination. So we have a very reasonable, down-the- middle nomination.

But what if this tactic of going on strike and failing to do your job worked, so that in the next administration you could secure a Supreme Court Justice who is way to the right?

First, it has been a clear and complete effort to pack the Court. You have destroyed the integrity of the Court as one that rises above partisan politics.

Then along comes another vacancy, and you have a different President and/or maybe the same President. Now the minority says: Well, we are going to go on strike, or maybe the majority is going to go on strike because they don't like this particular President or they don't like this particular nominee. And they say: We are not going to vet, we are not going to vote, we are going to wait. It is only 3 years until the next President. Let's let the people decide or wait till the next President.

Perhaps if the Republican side succeeds in packing the Court and then the question becomes another vacancy, Democrats say: Well, look, we have to restore the balance of the Court, so we are going to absolutely refuse to act on the next nominee of this Republican President.

This you can see. This precedent is not only a dereliction of duty; it is deeply damaging to the integrity of the Court. It is deeply destructive of the integrity of the Court. This is a path we do not want to go down as a body, exercising our advice and consent responsibilities, politicizing our judicial system, polarizing our judicial system, destroying the integrity of our judicial system.

I appeal to my colleagues, rethink the oath of office that you took to do your job, decide to end this job strike, and do your job. Rethink how important the responsibility that we have as a Senate is to maintain the integrity of our institutions. For short-term gain, destroying the Supreme Court, polarizing, diminishing the Supreme Court is not in the interest of our Nation.

I will go back to where I began, with our system of ``we the people''--our ``we the people'' Constitution--designed to create laws of, by, and for the people. There are three coequal branches of government; one creating laws, one executing those laws, and one determining whether or not those laws are within the balance of our Constitution.

This action of trying to pack the Court through a job strike is equivalent to shredding key parts of this beautiful document. It is wrong in terms of the short-term action, and it is certainly wrong in terms of our long-term responsibilities.

Let's end this show. Let's end this highly politicized moment. Let's actually hold the hearing to vet the candidate. Let's meet with the candidate so we can develop our individual understandings. Let's review the candidate's writings, and let's gather on the floor to vote whether we believe this candidate is a fit character or unfit character. That is our responsibility. Let's do our responsibility.

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