Legislative Branch Appropriations Act, 2017--Continued

Floor Speech

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Mr. DURBIN. Mr. President, I thank my colleagues for coming to the floor this afternoon for a historic presentation.

I just spent this last weekend--an enjoyable weekend--being a babysitter. My wife and I were able to babysit our 5-year-old grand- twins. It is always a kick to hear what is on their minds and have conversations. We spend a lot of time discussing the concept of fiction and nonfiction. They were trying to figure out which things were fiction and which were nonfiction. We went back and forth through superheroes and all the rest of it, and it was a lot of fun.

I thought about that as I came to the floor today because when it comes to looking for fiction and nonfiction, the Executive Calendar of the U.S. Senate on our desk would have to fall in the category of fiction. It is not true because in this calendar, you will find the nominations sent from the committee to the floor of the Senate to be considered. At least that is what you think you are going to find, but instead what we find are the names of 30 nominees to become Federal judges and have cleared the committees, such as the Judiciary Committee, and languish on this calendar never to be called by the Republican majority. Some have been here for a year. They cleared the committee with bipartisan votes. Many of them were nominated and approved by Republican Senators, but when they come to the floor, it comes to a full stop.

Senator McConnell, the Republican leader, is not scheduling votes for Federal judges under President Obama. He argues that whether it is the Supreme Court or other Federal district courts, this is a lameduck President, and he has no obligation, being of the opposite political faith, to give this President anything when it comes to judges. That is the Republican Senate position, that is Senator McConnell's position, but it is totally inconsistent with two things.

The tradition of the Senate is the first issue. When George W. Bush was in his last term in office and the Democrats were in control, we approved 68 judges in that last Congress--in his ``lameduck'' Congress.
So far this Congress Senator McConnell has allowed only 22 judges to come through the Senate, and 30 of them are sitting on the calendar. By the tradition of the Senate, where the Senate fills the vacancies when they need to be filled, regardless of the President's party or the year of his term--Senator McConnell ignores that. We have 91 Federal judicial vacancies across the United States that need to be filled.

Nearly half of them are emergencies. The caseload is overwhelming and justice is not being served in those districts, but Senator McConnell says no.

The most egregious example is the vacancy on the U.S. Supreme Court.

You can almost look through the windows and outside of the doors of the Chamber here and see that beautiful building, the Supreme Court, and realize that in a matter of days they will reconvene to consider the most important cases pending before the United States of America. What is different about this Supreme Court is that there are only eight Justices seated on the Court. The untimely passing of Antonin Scalia in February led to a vacancy on the Supreme Court. President Obama met his obligation under the Constitution. Article II, section 2 says the President shall nominate someone to fill the vacancy on the Supreme Court. President Obama did it. As the Constitution directs him, he sent that name to the U.S. Senate for advice and consent 195 days ago.

Senator McConnell announced he would not fill that vacancy and would not even give that nominee, Merrick Garland of the D.C. Circuit, a hearing so he could be asked the basic questions about his service on the Court. In fact, Senator McConnell took another step and said: I will not even meet with him. How many times has that happened in the history of the U.S. Senate? Never. Politicians are careful when they use that word--``never.'' We have never had a President submit the nominee to fill a pending vacancy on the Supreme Court who has been denied a hearing in the Senate--never.

Why? Senator McConnell says: Well, President Obama is leaving soon, as if he were elected only for a 7-year tenure and isn't entitled to be President in his eighth year, but the real reason is pretty obvious.

Senator McConnell and the Republicans are praying that Donald Trump will be able to fill this vacancy on the Supreme Court. After watching the performance last night, can you imagine that man choosing a Justice for life on the Supreme Court? That is what they are counting on. That is why they are leaving these vacancies open, too, so that Donald Trump can fill those vacancies.

It is a sad moment in the history of this country. It is the most accurate reflection of the dysfunction of the U.S. Senate I can think of--that the Senate Republican leadership would ignore the Constitution and the traditions of the Senate, leave these poor judicial nominees languishing for up to a year on the calendar, and refuse to meet their constitutional obligation to give Merrick Garland--even though the American Bar Association deemed him as being unanimously ``well qualified''--his time to come before the Senate for an open hearing, answer questions under oath, and receive a vote on the floor of the Senate.

The Republicans in the Senate want to brag about their great record of performance this year as the party in control of the U.S. Senate, but what they cannot explain or live down is the embarrassment they brought to this institution by refusing to meet their constitutional responsibility.

I yield the floor.

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