National Defense Authorization Act for Fiscal Year 2017--Motion to

Floor Speech

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Mr. WYDEN. Mr. President, I have waited to give this speech for weeks, waited for the rhetoric to die down after the untimely and unexpected passing of Justice Scalia, and waited to speak about the sad state of affairs out of a hope that no more words would be necessary before this Senate acted.

It was my fervent hope that the initial reaction to Justice Scalia's death was due to the shock and the grief at the loss of a conservative icon.

I, like many of my colleagues, were publicly mourning the loss, and I assumed that my colleagues were simultaneously realizing that after decades of trending to the right, it was now more than likely that the Supreme Court was going to shift back to a more centrist, progressive point of view.

But now it appears that the Senate has descended into an ``Alice in Wonderland'' world where the Senate cannot even agree on how many Supreme Court Justices make the Court functional. Throughout our history, in the Senate there have been previous attempts to attack the Court by, on the one hand, denying it members, or, on the other hand, packing the Court. In those instances, this once august body has stood together and always protected the sanctity of the Court--but not today.

The Senate is not only displaying contempt for the Court, but it is demonstrating contempt of its constitutional responsibilities. It is hard for the people we are honored to represent to make sense out of much of what goes on here--who serves on the subcommittee that always sounds like the subcommittee on acoustics and ventilation, what a motion to table the amendment to the amendment to the amendment actually means--but this is an issue the American people get.

We know there are supposed to be nine Supreme Court Justices and the Senate ought to do its job and ensure that the Court can function without wasting years of people's lives and dollars by allowing cases to be undecided through deadlock.

I can state that I am going to be home this weekend for townhall meetings. At these townhall meetings, I hear from citizens who are exasperated. They tell me this in the grocery store, in the gym, and in other places where Oregonians gather. They cannot understand how a U.S. Senator can ignore the responsibility to advise on a Supreme Court nominee and remain true to his or her oath.

Here is what Oregonians know for sure. They understand that the President of the United States is elected to a 4-year term, not a 3- year term and some number of days--4 years. We learn it in the first quarter of high school civics class. Oregonians and Americans understand that it is the President's job during that 4-year term to fill vacancies on the Court, and Oregonians understand that it is the Senate's job to advise and consent on the nomination by holding hearings and then having an up-or-down vote.

The President has fulfilled his duty. The Senate is utterly failing its responsibility. We have a nominee--an eminently well-qualified nominee. Our President pro tempore in the Senate, who is widely respected, called him ``highly qualified'' and described him this way:

His intelligence and his scholarship cannot be questioned. . . . His legal experience is equally impressive. . . . Accordingly, I believe Mr. Garland is a fine nominee. I know him personally, I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen, and he belongs on the Court. I believe he is not only a fine nominee, but is as good as Republicans can expect from this administration. In fact, I would place him at the top of the list.

Those are the exact words of our President pro tempore with respect to this nominee.

The then-chairman of the Judiciary Committee called him ``well qualified,'' even though he objected to bringing the Court he was being appointed to up to its full complement of Justices.

But despite having a fully qualified judge vetted and praised by many of their colleagues, this intemperate rhetoric about blocking the Court has now solidified into an indefensible position. That is why after waiting for weeks, I am on the floor this evening.

The first blow is now well known and often quoted. The majority leader said:

The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.

This was said at a time when other officials were releasing statements offering condolences to the Justice's family, which includes 26 grandchildren.

In some respects this reaction should have been expected. When President Obama took office, it seemed that the goal of some was to oppose anything he did, however reasonable. Senators such as myself who have been here long enough to see the ebbs and flows of the Senate figured that this stance was probably just a temporary slump. Senators put in long hours and travel endlessly to make a difference on issues that are important to them and to their States. Even if the solemn responsibility and constitutional duty with which they are entrusted weren't enough to encourage action in this serious situation, it would seem, for the sake of our country and our people, that many here hoped this body would find its way back again.

Unfortunately, that has not been the case. So the majority leader's response to the death of Justice Scalia becomes yet another example of the scorched-Earth approach to politics the far-right has taken since the very beginning of the Obama Presidency. It is a sad and unworthy response to Americans who expressed their will at the ballot box.

Many Americans list choosing a Supreme Court Justice as one of their leading reasons for choosing a Presidential candidate. Sometimes--many times--this is given as the most significant reason for voting for a President. In the last Presidential election, the American people chose Barack Obama as the duly elected President of the United States. I state this because, for many of my colleagues, that fact somehow seems to have just vanished from their minds, or perhaps there is just a refusal to recognize the results of the 2012 election. Americans chose President Obama to be the Commander in Chief, to administer the laws, and, yes, to appoint a new Supreme Court Justice for any vacancies that occur between January 20, 2013, and January 20, 2017. The unanimous position or near unanimous position of the majority is that elections don't really seem to matter, that the rule of force becomes the rule of law, and saying ``no, we will not'' is an acceptable response for being asked to fulfill constitutional responsibilities. Basically, this position disenfranchises the constitutionally ratified choice of more than 65 million Americans because the majority in the Senate simply doesn't agree with them.

This is not a response worthy of U.S. Senators. It is choosing party and ideology over the needs of our country, and it is a political choice that many of my colleagues are beginning to understand they cannot support.

My colleagues have said: It is not the position; it is the principle. But this is a position without principle. It is really pure politics-- pure politics of the worst kind. It calls into question whether perpetrators can effectively do their jobs as Senators going forward.

Today the Senate, this venerable institution, continues to find itself in the hands of the most insidious form of politics--small ``p'' politics. It is the kind of politics that seems just devoid of reason, revolving around what seems to most Americans to be a truly straightforward portion of the Constitution.

Article II, section 2, paragraph 2, of the Constitution states:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to . . . nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court. . . .

Now, I am a lawyer in name only. I don't profess to be a constitutional scholar. But at this point, I am one of the longer serving Members of the Senate, and I have placed a special priority on working with colleagues across the aisle, trying to find common ground, recognizing that the Senate is at its best when colleagues work together. But to my mind, the current approach taken by the majority toward the President's duty to nominate a Supreme Court Justice and the duty the Senate has to advise and consent on the nominee has led this Senate to an unprecedented and dangerous situation. It seems to me that by denying Judge Garland a hearing, we are denied the opportunity to ask the nominee questions to which the American people are owed answers.

The current position of refusing to ask those questions and hear those answers is an insult to our form of government, one understood by originalists, strict constructionists, and liberal interpreters alike. The Senate's decline has been particularly vivid in the case of judicial appointments. The U.S. Court of Appeals for the District of Columbia is the primary judicial forum for appeals of Executive and regulatory actions prior to the Supreme Court. As such, it has become the focus of ideologues who oppose environmental regulations, consumer regulation, anti-trust, and many other hallmarks of our system of government for the past century.

When three vacancies opened on this court and Presidential appointments were made, Senate Republicans proceeded to filibuster each and every one of those nominees, claiming--in my view ridiculously-- that the President was engaged in ``court packing.''

Now, in the interest of fairness, court packing is the reprehensible course of action chosen by a liberal icon, President Franklin D. Roosevelt, when faced with a court that opposed his will. That attempt was a dangerous time for our constitutional system of checks and balances and must be remembered, lest it be repeated.

Not only was it dishonest to apply this term to the regular process of filling existing vacancies, the accusers were, in fact, attempting to accomplish FDR's same goal of bending a Federal court to their will in a blatant attack on our system of checks and balances.

Today, we are witnessing another attack on the Constitution in this refusal to do our job and proceed to the confirmation process for Judge Garland.

This is a grave assessment, and maybe I am being a bit too harsh to colleagues in laying their refusal to duty on purely political grounds. So I want to just take a couple of minutes to unpack some of the justifications that have been given for what we have heard. Some Members have argued there is a longstanding tradition that the Senate does not fill a Supreme Court vacancy during a Presidential election year. This has been referred to as an ``80-year precedent'' and as ``standard practice.''

Unfortunately, that turns out not to be the case. There is no such precedent. Or, I would say, there is no such precedent unless you define your terms so narrowly that the concept of precedent becomes meaningless. This can be contrived, for example, by limiting the discussion to nominations made during a Presidential election year rather than nominations considered during a Presidential election year.

However, that is like saying: We never previously filled a Supreme Court vacancy in a year in which Leonardo DiCaprio won an Oscar and Denver won the Super Bowl. This is true enough, but it covers such a small set of cases that it provides no meaningful guidance. If anything, the relevant historical precedent favors the Senate considering a nomination to fill the current vacancy.

Since 1912, the Senate has considered seven Supreme Court nominations during Presidential elections. Six of the nominations were confirmed: Mahlon Pitney in 1912; Louis Brandeis and John H. Clarke in 1916; Benjamin Cardozo in 1932; Frank Murphy in 1940; and the most recent example, Anthony Kennedy in 1988, who was nominated by President Reagan and confirmed unanimously by a Senate in which Democrats held the majority.

In one other case, that of Abe Fortas in 1968, the nomination was rejected in an election year. However, even then, the Senate did its job. It held hearings, reported the nomination from committee, voted on whether to invoke cloture on the nomination on the Senate floor.

In the face of this historical record, some Senators have argued another point. They have invoked the so-called Biden rule, based on a speech that Vice President Biden gave on the Senate floor in 1992 when he was chairman of the Senate Judiciary Committee. In that speech, according to some Members, Senator Biden established a binding rule that the Senate should never consider Supreme Court nominations during Presidential election years.

First, as discussed above, there is no such thing as a binding Senate rule. We make them. We break them. We change them. It is the flexibility of this institution that has allowed it to continue to serve Americans for 225 years and the current inflexibility of my colleagues that threatens to bring it to harm.

Now, let's look at Senator Biden's 1992 comments in perspective. He gave a speech, perhaps intemperate, but in 1988, as I just described, he led the Senate in confirming Justice Anthony Kennedy.

Further, in 1987 and 1991, when Presidents Reagan and Bush submitted the highly controversial nominations of Robert Bork and Clarence Thomas, the Senate Judiciary Committee, chaired by then-Senator Biden, held hearings on the nominations and took them to the floor for up-or- down votes. So when Senator Biden chaired the Judiciary Committee, he always provided a Republican President's Supreme Court nominees with a hearing, a vote in committee, and a vote on the Senate floor.

It is also important to consider the overall point that Senator Biden was making in 1992. The Supreme Court was about to adjourn, which is a time when Justices frequently announce their retirement. Senator Biden was arguing that there should not be a trumped-up retirement, designed to create a vacancy for which the President would submit an ideologically extreme nominee as ``part of a campaign to make the Supreme Court an agent of an ultra right conservative social agenda which would lack support in the Congress and the country.''

Senator Biden was arguing against partisanship. He was counseling restraint. He said that ``so long as the public continues to split its confidence between branches, compromise is the responsible course both for the White House and for the Senate.''

Noting his support of the nominee, though nominated by an opposing President, Senator Biden was urging both sides to step back from partisan ideological warfare. Senator Biden urged Congress to develop a nomination confirmation process that reflected divided government by delivering a moderate, well-respected nominee who would be subject to a reasonable, dignified nomination process.

Senator Biden went on to say, ``If the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support, just as did Justices Kennedy and Souter.''

That is precisely the approach that President Obama is following here--moderating his selection. In nominating Judge Garland, the President has not politicized the process. The President has not nominated some left-wing ideologue who thrills progressives but angers conservatives. You already heard what I quoted directly from our esteemed friend, the President pro tempore of the Senate, Senator Hatch. The President has gone to the middle, seeking compromise. He has nominated someone who is widely regarded as sound and moderate and capable. Indeed, not long ago, leading Republican Senators cited Judge Garland as the very example of the type of person they were hoping the President would nominate.

Judge Garland is the kind of person about whom my colleagues on the other side of the aisle said: This is the kind of person we would really like to see for this job.

Now, there have been other attempts to defend the indefensible, and they all go back to the facts that I have just outlined. No matter the politics, no matter your concern about a primary challenge from the right, no matter the faint hope that a Member of your party might win the White House and nominate an ideological kindred spirit, no matter the pressure to choose party over country, it is time to do our constitutional duty, hold hearings, ask questions, get answers, and vote on the nominee.

Perhaps, as with Abe Fortas, the nominee will be rejected. If that is the Senate's will, so be it. But denying a duly nominated candidate a responsible and dignified confirmation process is choosing to further endanger the people we serve and the body that we serve in.

Finally, every Republican Member must know that having a meeting or calling for hearings and a vote without taking any action to make it so is pretty much naked politics, and Americans are not going to be fooled. If Members of the majority actually wish to see the Senate do its job, they can force the Senate to make it happen by denying the leadership the ability to act on other less pressing matters until they take up this responsibility.

To go home and claim that you would like hearings--that you would like a vote--without taking action to make it happen is simply lip service to the constitutional responsibility of a Senator.

I am going to close with just a couple of last thoughts. My colleagues have the opportunity to redeem this body. My colleagues have repeatedly said: It is not the position; it is the principle. But it was understood during FDR's time, and it should be understood now, that threatening the makeup of the Supreme Court is a position without principle.

Intemperance appears to be the hallmark of political rhetoric in this day. Somehow, if it is loud and intemperate, that is what people are going to pay attention to. But this sort of intemperate rhetoric is certainly corrosive to this institution.

The Senate still has an opportunity to sober up, regardless of what was said, buckle down, get to work, hold hearings, and vote on a nominee. Political rhetoric can be forgiven. Allowing intemperate rhetoric to control the solemn responsibility of every Senator is unforgivable.

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