Supreme Court Nomination

Floor Speech

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Mr. KAINE. Madam President, I rise to discuss the pending vacancy on the U.S. Supreme Court, and I do so on a very momentous day in American legal history. May 17, today, is the anniversary of the Supreme Court's decision in the pivotal case of Brown v. Board of Education. On May 17, 1954, the Supreme Court ruled that the promise of equality--stated as paramount in the Declaration of Independence and then reaffirmed in the 14th Amendment to the Constitution passed in the aftermath of the Civil War--could not be denied to little school children based on their skin color. The Brown v. Board case was actually five cases consolidated together--one from Virginia, one from Kansas, one from Delaware, one from South Carolina, and one from the District of Columbia.

While most of us know what the Brown case resolved, few remember that the Brown ruling was in serious jeopardy because of the death of a Supreme Court Justice and the deep divisions on the Court among the remaining eight members. It was only through the prompt filling of a judicial vacancy that the Court was able to come together and render a ruling in America's best interest.

The Brown case was originally argued in 1952, and the court that heard the argument was hopelessly divided. In fact, it was so divided that they asked that the case be reargued in 1953, and then to make matters worse, Chief Justice Fred Vinson died before the reargument. By many accounts, his death left the Court evenly divided over an issue of the most fundamental importance. Had the vacancy left by the death of Judge Vinson persisted, there is no way of predicting whether the Supreme Court could have even resolved the case. Imagine how different our history as a Nation would be if the Supreme Court had been unable to decide on a matter of fundamental importance.

President Eisenhower nominated former California Governor Earl Warren to fill the vacancy. The Senate did its job, held a prompt hearing, and confirmed the appointment. Chief Justice Warren then used his skill to cut through the division and convince his colleagues that the Court should speak unanimously and say that a child's skin color should not determine which school he or she should attend. Because the Senate did its job, the Court was able to do its job, and all of America was lifted.

I have listened to my colleagues and Virginia citizens about the current Supreme Court vacancy for 3 months. I have come to this conclusion: I think the Senate is treading on dangerous ground here. We are communicating--and I think the communication could be unintentional--a message to our public that is painful, and our actions in this high-profile matter are creating pain among many of my constituents. I fear that a precedent is about to be set that could undermine all three branches of our government.

I offer these comments today because the Senate can correct the dangerous message we are sending, and I hope that calm reflection will call us to honor the great traditions of this body.

The death of Justice Scalia on February 13 created a naturally occurring vacancy on a Court that is statutorily required to have nine members. Within hours of Justice Scalia's death, the majority leader announced a blockade on the vacancy, declaring that no nomination by President Obama would ever receive a hearing or a vote. This hastily announced blockade has been described as follows: The majority thinks the American people should decide on the Presidential race, and therefore, this nomination should be for the next President to make, even if that means a Supreme Court vacancy for more than a year.

I want to examine the majority's rationale. What has the Senate done in other instances when a vacancy has occurred during the last year of a President's term? Well, that is easy enough to find out. Before Justice Scalia's death, more than a dozen Justices have been confirmed during a Presidential year. For the last 100 years, with the exception of nominees who have withdrawn their nomination, the Senate has taken action on every pending nominee to fill a vacancy on the Court.

In the past, some Senators have suggested that a vacancy occurring during the final year of a Presidential term should be entitled to less deference than other Executive nominations, but that is related to the question of whether or not a Senator votes yes or no, and, of course, Senators are free to vote yes or no on nominees. But the refusal to even consider a nominee is unprecedented.

Beyond the precedent of previous Senate actions, let's look at article II, section 2, of the Constitution. It says that the President ``shall nominate'' and ``appoint''--``by and with the Advice and Consent of the Senate''--various officials, including Supreme Court Justices.

While all agree that the advice and consent provision gives the Senate the ability to affirm or reject a nominee, there is nothing in the clause suggesting that the Senate can blockade the consideration of a nominee, and there is certainly nothing in the clause to suggest that the President's appointed powers or the Senate's confirmation powers are somehow limited in the last year of a Presidential term.

Finally, the meaning of the constitutional clause was extensively discussed as the Constitution was drafted, approved, and ratified by the States, and Alexander Hamilton's Federalist Paper 76 also discusses the provision at length. All understood that the advice and consent provision was an opportunity for the Senate to determine whether a Presidential nominee for a Senate confirmable position possessed ``fit character.'' That is the check against Presidential power intended by the clause. The President, knowing that a Senate would inquire into the character of a nominee, would not just nominate people purely for partisan, personal, or regional reasons--wanting to fill it with people from my State, for example. ``Fit character'' would require that the President nominate somebody who could pass that scrutiny in the Senate. ``Fit character'' is a phrase with some significant subjectivity to it, giving each Senator the ability to decide what it means in a given instance. But the position that the character of the nominee doesn't matter at all--as evidenced by the majority's view that there would be no meetings, no hearings, and no vote regardless of the person nominated for the vacancy--is directly contrary, in my view, to the intent of the provision.

I look at this, and I believe the asserted rationale that we should not take up the Garland nomination because the vacancy occurred in the final year of a Presidential term is at odds with the text of the Constitution, with the clear meaning of the text, as explained during the drafting of the provision, and with the clear line of Senate action in previous cases.

What could explain the blockade of Judge Garland? I obviously don't know, and I can't comment upon motivations that I am unaware of, but I do want to discuss how it appears--a perception that we are leaving, possibly unwittingly, based on my discussions with Virginians. The current Senate blockade is variously interpreted as an opposition to the nominee, as opposition to the particular President making the nomination, or as some effort to undermine judicial independence.

Let's look at those three interpretations that are very commonly held by Virginians and others. The first interpretation: Is it opposition to the nominee? I think we can dispense with that pretty quickly. The blockade strategy is not based on the character of the nominee, Judge Merrick Garland, and I can assert this safely because the blockade strategy was announced--no meeting, no hearing, no vote--before the President even nominated Judge Garland. It was said that regardless of the character of a particular nominee, they would not entertain a nomination from this particular President. This is ironic, given that the nomination for a Supreme Court Justice is fundamentally about the very essence of justice and that the essence of justice must carry with it a duty to consider each individual on his or her own merits. The position that we would refuse to consider Judge Garland on his own merits seems contrary, to me, to the very notion of justice itself.

Now that Judge Garland has been nominated, we also know that the blockade is not about the character of the nominee. Judge Garland has an esteemed record as a prosecutor, private practitioner, and Federal appellate judge on the D.C. Circuit Court of Appeals. He is the chief judge on that court. His judicial service alone is approaching the 20- year mark on a court that most believe is second in importance only to the U.S. Supreme Court.

I have not seen any Member of the majority assert any credible weakness in Judge Garland's background, integrity, experience, character, judicial temper, or fitness for the position. Indeed, the majority's senior Member, a respected former chair of the Judiciary Committee, has praised Judge Garland as exactly the kind of jurist who should be on the Supreme Court.

In my recent interview with Judge Garland, I came away deeply impressed with his thoughtful manner and significant experience as a trial attorney and judge. This is no ivory tower jurist, but instead a man who understands the real-life struggles of plaintiffs and defendants, lawyers and juries, legislators and citizens, and trial judges who depend upon the Supreme Court to give clarity and guidance to the rules that impact the most important issues of their lives.

I think we should give President Obama his due in proposing a nominee with such impeccable credentials. I reject the first possible explanation that the majority's opposition is about the nominee. In fact, a determination that Merrick Garland was not of fit character to even receive consideration as a Supreme Court Justice would set such a high bar for appointees that it is hard to imagine anyone ever clearing it.

Since the Garland blockade has nothing to do with the character of the nominee, many perceive that it is instead explained by the majority's views of this President.

Is there something about President Obama that would warrant his Supreme Court nominee receiving second-class treatment compared with past Senate practice?

Could it be the circumstances of the President's election? Some Presidents have been elected with less than a majority vote of the American public and have thus been burdened with the notion that they did not have a mandate from the American public, but President Obama was elected in both 2008 and 2012 with overwhelming majorities in the electoral college, and his popular vote margins in both elections were also relatively strong in comparison with the norm in recent Presidential elections. So there is nothing about the legitimacy of President Obama's elections that would warrant treating this President's nomination different from previous Executives.

This makes extremely puzzling the majority's claim that they want to ``let the American people decide.'' The American people did decide. They gave President Obama the constitutional responsibility to nominate Justices to the Supreme Court from his first day in office to his last. Some may not be happy with the decision, but it is insulting to the President and it is insulting to the American electorate who chose him, according to longstanding and clear electoral rules, to demean the legitimacy of his election.

Could it be the unique unpopularity of this President? I think one could hypothesize a situation where a President, in the last year of his term, is so unpopular that a Senate might conclude that the public is no longer supportive of the Executive, but that is not the case with President Obama. The President's current popularity is actually quite strong compared with other Presidents during their final years in office. So there is nothing about the President's popularity with the American electorate that would warrant treating his court nominee different than the treatment afforded to past nominees.

So what could it be about President Obama that would warrant the blockade of his Court nominee in a manner completely different than the way the Senate has treated all other occupants of the Oval Office? In what way is this President different to justify such treatment?

I state again what I have said before. Obviously, I don't know the answer. I cannot say why the Senate would be so willing to break its historic practice and, by my reading of the Constitution, to refuse consideration of a nomination made by this particular President, but I can say it is painful and offer some thoughts about how it appears to many of my neighbors, to many of my constituents, as well as to many of my parishioners with whom I attend church. They reacted with alarm when news came that certain leaders had declared, soon after President Obama was elected, that their primary goal was to assure that he would not be reelected. They watched with sadness as some in Congress raised questions about whether he was even born in the United States. They saw some in Congress question his faith and his patriotism. They observed a Member of Congress shout ``you lie'' at this President during a televised speech to the entire Congress. They noticed, recently, as the Budget Committees of both the House and Senate refused to even hold hearings on the President's submitted 2017 budget--the only time a President has been treated in such a manner since the passage of the Budget Control Act of 1974. In short, they are confused and they are disturbed by what they see as an attack on this President's legitimacy. I am not referring to an attack on this President's policies, which should always be fair game for vigorous disagreement, and I have often attacked this President's policies, but instead what people are worried about is some level of attack on the very notion that it is this individual occupying the Oval Office.

This latest action--the refusal to even consider any Supreme Court nominee afforded by President Obama in his final year, when other Presidents were granted consideration of their nominees--seems highly suspicious to them. When that blockade is maintained, even after the President affords to the Senate a nominee of sterling credentials, the suspicion is heightened. When the asserted reason is the need to ``let the people decide,'' thus suggesting that the people's decision to elect this particular President twice is entitled to no respect, they are deeply troubled. What can explain why this President--the Nation's first African-American President--is singled out for this treatment?

Again, I don't know, but we cannot blind ourselves to how actions are perceived. The treatment of a Supreme Court nomination by this President that departs from the practice with previous Executives and that cannot be explained due to any feature of the particular nominee under consideration feeds a painful perception about motivations. The pain is magnified when it is in connection with an appointment to the Supreme Court, whose very building proclaims in stone over its entrance the cardinal notion of ``Equal Justice Under Law.''

There is a third interpretation of the Garland blockade that is also troubling. Some see the blockade as just sort of power politics--as an attempt to slant the Court. The death of Justice Scalia creates concern among those who fear a natural transition on the Court, so there is an effort to stop that natural and lawful transition.

The blockade on filling a naturally occurring vacancy, in my view, is harmful to the independence of the article III branch. Even in the 3 months since Justice Scalia's death, the Court's rulings have shown the challenges of an eight-member Court. On four occasions already, the Court has been unable to render a clear decision in a case of great importance. Since the blockade, if successful, will probably maintain the artificial vacancy until the spring of 2017, it is likely to happen in other cases as well. So lower courts, and all persons whose rights and liberties are subject to rule by this Court, are deprived of the clarity on Federal issues that the Court was designed to provide, but it is more than just a hobbling of the Court's ability to decide individual discrete cases.

Seventy years ago, when Winston Churchill spoke at Westminster College about the descent of an Iron Curtain across Europe, he defined the differences between free societies and those driven by tyranny. Key to his description of free societies was an independent judiciary. It is an independent judiciary that serves as a bulwark against Executive or legislative power grabs, protecting the liberties of an individual from an overreaching Executive or from a majoritarian legislature that does not fully grasp the rights of minorities. That is what an independent judiciary is designed to do. I think we all know this independence of the American judiciary has been one of the great hallmarks of American democracy.

In my view, the blockade of the Garland nomination undermines this independence. The Judiciary Act of 1869 sets the composition of the Court at nine Justices with life tenure, and that statute has remained in force for 150 years. When President Franklin Roosevelt didn't like certain rulings of the Supreme Court in the 1930s, he tried to expand the Court and elbow out older Justices by proposing a forced retirement age and an expansion of the numbers in that Judiciary Act of 1869. Everybody understood that FDR's actions were an attempt to attack the independence of the judicial branch, and so congressional leaders of both parties stood up to stop him.

I think this current blockade is the legislative equivalent of what President Roosevelt tried to do. Refusing to consider an Obama nomination in order to artificially maintain a Court vacancy for more than a year is as much an attack on the judiciary as trying to expand it beyond nine members. I hope we would agree with this: Whether an independent judiciary is attacked by the executive or the legislative branches, we need to be equally diligent in repelling that attack.

American diplomats work every day around the world trying to convince other societies of the virtues of the rule of law and the independent judiciary, but the current blockade, unless corrected, suggests that we do not practice what we preach. By refusing to fill a naturally occurring vacancy, we send the message that the rule of law and an independent judiciary are ultimately secondary to having a more favorable or a more compliant judiciary, even when we have to weaken it to obtain what we want.

I once lived in a country with a military dictatorship that held this view of the judiciary. The judiciary was not prized for its independence but instead was priced for its slavish obedience to a few in control of society. By refusing to fill a Supreme Court vacancy because a partial and weakened Court is deemed more acceptable than a full and lawfully constituted Court, we move away from one of our best traditions--to become more like legal systems that we are working to change around the world every day. In doing so, we weaken the judiciary by leaving this vacancy that has already affected proceedings, we weaken the Executive by hobbling the constitutional power to fill dually constituted executive and judicial positions, but we also weaken the legislative body, which has that important duty of checking these nominees for fitness of character, and by doing it without even being willing to cast a vote, I think we hurt our own institutional credibility.

In conclusion, I harken back to 1954. A matter of fundamental importance to our Nation was before the Supreme Court. The death of a Justice left an eight-member Court that had already shown it was deeply divided and likely unable to reach a ruling, but the Senate did its job and filled the Court and the Court could then render a ruling that changed the course of American history for the better.

We should learn from that history and do our job. Persisting with this current blockade and sending these possibly unintentional messages is deeply dangerous. The refusal to carry out the commands of the Constitution and the Judiciary Act of 1869, to abide by the Senate precedents, to fill a naturally occurring Supreme Court vacancy, to offer the advice and consent that is part of a Senator's job description, and to entertain a well-qualified nominee--even for a hearing, much less a vote--will not be viewed favorably in the bright and objective light that history will shine on all of our actions.

We can fix this. If the Judiciary Committee will hold a hearing, cast a vote, report Judge Garland to the floor, and then ensure that the Senate debates this nomination and holds a floor vote, we will uphold our responsibility. Judge Garland might be confirmed or he might be rejected, but in taking action--rather than mounting an unprecedented blockade--we preserve the ability of each Senator to make the judgment about whether Judge Garland possesses the fit character necessary for this position. We act in accordance with the Constitution and the Judiciary Act of 1869, we follow the traditional practices of the Senate--practices that have served us well, as the case of Brown v. Board of Education shows--and we cure the painful and dangerous message that is communicated by the current blockade strategy.

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