Energy and Water Development and Related Agencies Appropriations Act, 2016

Floor Speech

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, will the Presiding Officer tell us what the order of business is.

BREAK IN TRANSCRIPT

Mr. DURBIN. There are no time limits agreed to?

BREAK IN TRANSCRIPT

Mr. DURBIN. I thank the Chair. Judicial Nominations

Mr. President, the Executive Calendar is sitting here on the table for each Member of the Senate to take a look at. I have renamed it. It is no longer the Executive Calendar; it is the political obituaries.

These are men and women who have been nominated to serve in positions of our government, who are excited about the opportunity to be public servants, many of whom have gone through extensive background checks, FBI checks, with staff having taken a look at their resumes, asked hard questions, demanded answers, and put these nominees through hearings. Many went through extensive periods of investigation and hearings and then were reported--20 of them, 20 judicial nominees--by the Senate Judiciary Committee to the floor of the Senate. Were they controversial? No. All 20 came to the floor by unanimous vote.

Think about it. Here is a Senate divided--54 Republicans and 46 Democrats--and 20 judicial nominees made it through what I just described to the Executive Calendar of the Senate, Wednesday, May 11, 2016. And there they sit, day after weary day, month after weary month, thinking they might have a chance to serve this Nation but realizing the clock is running out. What do I mean by that? In this Congress we have approved 17 judges--2 circuit judges, those at the appellate level, and 15 at the district level. Twenty still sit on the calendar. And across the United States, we have 87 judicial vacancies, including 29 that are in districts we think are in serious trouble if they aren't filled quickly.

The Republican majority in the Senate puts these men and women through this process, reports them out of committee, and then lets them languish on the floor of the Senate. They will not call them for a vote. What are they waiting for? Well, it is a political decision. Here is what it comes down to. There is an unwritten rule--you will not find it in our rule book--called the Thurmond rule. It relates to Senator Strom Thurmond of South Carolina. He must have articulated this at some point in his career, but he said: When it comes to an election year-- like this one--we will stop approving nominations as of the beginning of the political conventions.

Well, in this year, that is going to be about the middle of July. So if you do the countdown of when we are in session, we have probably 5, 6 weeks left to consider nominations before they die under the unwritten Thurmond rule. So what the Republicans are doing is running out the clock on these 20 people. We shouldn't be surprised. If they would do this on a nomination to fill a vacancy on the highest Court of the land, it shouldn't surprise us they would do the same thing when it comes to these 20 nominees. What are they waiting for? Why don't they want to approve these noncontroversial judges? They are waiting in prayerful reflection for the election of Donald Trump as President.

Mr. President, you know that many people in your party have mixed feelings about the candidacy of Mr. Donald Trump. But I would say, stepping aside from the merits of his candidacy, we shouldn't have mixed feelings when it comes to the Constitution, and the Constitution is explicit when it comes to vacancies on the Supreme Court. The Founding Fathers, in the Constitution--quoted a few minutes ago by my colleague from California--in article II, section 2, didn't mince words or equivocate. They said the President shall appoint nominees to fill vacancies on the Supreme Court, subject to the advice and consent of the Senate.

We both have a role. The President is required by the Constitution to appoint someone to fill a vacancy. And 3 months ago, the untimely passing of Justice Antonin Scalia created that vacancy. Two months ago--56 days ago--President Obama nominated Merrick Garland to be the next Justice on the Supreme Court. The President met his constitutional responsibility. But the Republicans in the Senate announced, hours after Justice Scalia was found to have passed away, they would not even consider a nominee by this President to fill that vacancy--not a hearing, not a vote.

You might say to yourself: Well, that is politics in Washington. Should we expect anything different? Should we expect a Republican Senate to approve a nominee from a Democrat? Come on, this is hard ball here; this isn't bean bag.

Well, let me tell you a little story. In 1988, with a vacancy on the Supreme Court, Republican President Ronald Reagan, in his last year in office, nominated Anthony Kennedy to fill that vacancy and sent the nominee to this Chamber in the Senate when it was controlled by the Democratic side. What did the Democratic majority say to the Republican President, trying to fill a Supreme Court vacancy? We know our responsibility. And that Senate, under control of the Democrats, took up the name offered by the Republican President, approved him, and sent him to the Supreme Court in 1988.

So to argue ``This is just typical politics. Don't make a lot of noise. We do this all the time''--let me make it clear: What the Republican Senate majority is doing today has never--underline that word ``never''--happened in the history of the United States of America.

This is disrespect for a constitutional provision that is explicit. This is disrespect for a Court which now sits with 8 members on the Court--a Court which could find itself--and already has in several instances--tied 4 to 4. How important is that? Let me read a quote from back in 1987: ``Every day that passes with the Supreme Court below full strength impairs the people's business in that crucially important body.'' Who made that statement? Republican President Ronald Reagan. What he said then applies now.

What the Republican majority is doing in the Senate--refusing Merrick Garland a hearing and a vote, holding up on the calendar 20 nominees who should be on the Federal bench--is obstructionism at its worst. It is what the people are sick of across this country. It is disrespectful to the Constitution, it is obstructionism, and it is pure politics.

Why? Why are they so determined to keep this vacancy? Some of them, as I said, are dreaming of the possibility of a President Trump picking the next Justice on the Supreme Court. I will let your mind race away with the possibilities if ``The Donald'' is going to choose the next Justice on the Supreme Court, but others really bring it down to a much more basic level.

There are special interest groups who want to make sure the next Justice on the Supreme Court is their friend. They do not want to run the risk that someone is going to be put on the Court who will not rule in their favor. So they are praying their political prayer: Hang on, hang on, Senate Republicans. Take the grief that two-thirds of the American people think you are wrong in what you are doing and be prepared to accept that grief if you want the support of these special interest groups.

That is what this comes down to. It is the sad reality of politics in Washington today. And I will tell you, there is blame for both sides on many issues, but on this one there is crystal-clear clarity. The President has met his constitutional responsibility. The Senate Republican leaders, for the first time in the history of the United States of America, are denying a Supreme Court nominee a hearing and a vote. That is fundamentally wrong under the Constitution and fundamentally unfair to Merrick Garland.

Merrick Garland was born in Illinois, so maybe I am partial to him a little bit, but he has quite a record. He has been touted as one of the best nominees in terms of qualifications. He is now the chief judge of the D.C. Circuit Court, right below the Supreme Court. That is a big job, but he is the man for it, according to people from both political parties.

Solicitors General of the United States of America just sent a letter to the Senate. Nine of them signed, Democrats and Republicans. These are men and women who have argued before the Supreme Court representing the United States of America--attorneys who are familiar with that Court, the gravity of the decisions they face, the requirements to serve on the Court--and unanimously, Democrats and Republicans, they said to the Senate: Merrick Garland is the right man to serve on the Supreme Court.

We come today with sadness, and even more with a sense of injustice that the Republicans would allow this political gambit to continue. To think that they are waiting for President Donald Trump to fill this vacancy is almost impossible to say or to believe, but it is a fact.

I will close by saying I have checked the Constitution, and I check it regularly. There has been no change in the provision that says, in November of 2012, Barack Obama was reelected President of the United States to serve for 4 years--4 full years--and that would include this year. The Republican argument that he is out of business now and we will wait for the next President defies the verdict of the American people in that election. By 5 million votes they said: Barack Obama, you are the President of the United States for 4 years, with the powers attendant to that office. The denial by Republicans of that constitutional reality is a reflection on their feelings about a document which they have sworn individually to uphold and defend.

BREAK IN TRANSCRIPT

Source