Filling the Supreme Court Vacancy
Floor Speech
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Mr. President, earlier this year the Republican leadership made a somewhat controversial decision, but when you think about it, it shouldn't have been all that controversial. It was to allow the American people, by their selection for the next President of the United States, to express their views about who ought to be nominated to the vacancy left by the untimely death of Justice Antonin Scalia. This is not an easy decision, but the fact remains that the Supreme Court considers rules on some of the most pressing, challenging questions of our time. It does some very important things, such as interpreting the Constitution. They are the final word. It also guarantees liberty by the separation of powers and enforcing the Bill of Rights and the like.
It is no exaggeration to say that the Supreme Court affects the lives of every man, woman, and child in our country, and it is obviously a truism that the people who occupy those seats will have a very clear impact on the future direction of not only the Court but our country.
We have to consider lifetime appointments carefully. As Justice Scalia liked to say during his lifetime, why in the world should people trust nonelected judges to make value judgments and in so doing, substitute their judgment for the views of the duly elected Members of Congress who represent the American people and who are politically accountable? That is why he said judges ought to take a rather limited role, or view of their role, under the Constitution. I agree with him.
The role of the judiciary is not to say what the law should be but, rather, what the law actually is. Unfortunately, we know the Supreme Court of the United States has become such a controversial place in large part because of its tendency to substitute its value judgments for those of the American people or to read into the Constitution words that nobody found in the last 200 years, but miraculously somehow they sprung up with new meaning, resulting in the creation of a new constitutional life that nobody ever dreamed existed before.
It is true that the Supreme Court plays an essential function in our government, and there was simply too much at stake not to let the American people, through their selection of the next President, have a say. Well, suffice it to say, 3 weeks removed from election day, it is clear that we heard their voice. I think by the selection of Donald Trump as the next President of the United States, the American people clearly realized that even though the Supreme Court wasn't on the ballot, the person who selected the next Supreme Court Justice--perhaps the next two or three--was clearly on the ballot, and there was a clear difference between those choices. I think people realized that Secretary Clinton would likely appoint more judges in the tradition of people like Justice Ginsburg and Justice Sotomayor, people who demonstrated their record of being willing to take some license with the Constitution and the laws and basically rewrite them in their own image.
I think the American people knew they were choosing between activist judges who essentially operated as unaccountable, unelected legislators wearing black robes or judges who believed in the more traditional role for the judiciary--judges who actually interpret the written words on the page passed by the Congress and signed into law or the Constitution itself. I believe that is how our Founding Fathers intended our separation of powers to work.
The judiciary is not supposed to be a substitute for Congress and the political branches; it is supposed to represent a check and balance to make sure that the laws that are passed do not violate the Constitution as written and that the laws that are passed are faithfully enforced according to the words in the statute.
I, for one, look forward to considering President-Elect Trump's nominee to the Supreme Court in due time. Since I have been in the Senate, I have had the privilege of participating in the nomination and confirmation of four Justices to the U.S. Supreme Court. As members of the Judiciary Committee, we are at ground zero in that process, and I know Chairman Grassley is already preparing, along with members of the committee, to receive the nomination of President-Elect Trump. We don't know whom he will nominate to the Court yet, but he has given the American people a pretty good idea of the type of jurist he would nominate. I think that is one of the reasons millions of Americans voted for him. They wanted an administration committed to the Constitution, and they saw that commitment reflected in the list of men and women President-Elect Trump circulated as potential nominees to the Court.
Now that we have heard from the American people, I look forward to going through the confirmation process once again. I am sure it will be a rigorous contest of ideas. I am sure there will be a lot of different views expressed, and that is OK. But in the end, I am confident that we will elect President-Elect Trump's nominee to the Supreme Court. I am optimistic that it will be somebody in the tradition of Justice Scalia, somebody who believes in upholding the rule of law in the country.
Having been a member of the State judiciary for 13 years, I have some pretty strong views on this topic. If people want to take on the role of a policymaker, I believe they ought to run for Congress or some legislative office or maybe run for President. They shouldn't seek to be a judge on the Federal court or in the court system because that is not primarily a policymaking role. It is important but perhaps less exciting in some ways or at least is a less visible way of interpreting the Constitution and the laws passed by Congress. That is important and straightforward enough, but it is important that the people who are nominated and confirmed understand what their important but limited role is under our constitutional government.
As I said, we need a Justice like the late Justice Scalia, who believed that the words in the Constitution matter. We need a Justice who brings some sense of humility to the bench. That is a very important quality. I remember Chief Justice Roberts talking about the importance of humility when it comes to the job of judging. When one has a lifetime tenure job and can't be removed from office except by impeachment, that gives them a lot of latitude to do things that perhaps maybe humility would dictate that we not do. So we need people of good character, people with the requisite qualifications and experience and with the right judicial philosophy, I believe. We need a Justice who will fight for the Court to take its proper role as a check against executive or legislative overreach, but it ought to be constrained by the words of the Constitution as written and by the words in the legislation Congress has passed. There is no justification under our Constitution for a judge who simply views their position as license to do what they want or substitute their opinion for that of the elected representatives of the people.
I am optimistic we will be able to move forward with President-Elect Trump's nominee to fill the bench and will soon be up to full speed of nine Justices. Through President Obama's tenure, we saw the Senate confirm two of his Justices to the Supreme Court. As I mentioned, those are two of the four confirmations in which I have had the pleasure of participating in the confirmation process. President Obama was able to replace two members of the Court.
In recent months, we heard our friends across the aisle say how important it is to fill the vacancy left by the death of Justice Scalia. We know they disagreed with us on our decision to leave that decision to the voters who selected the next President, but I trust they will feel the same way now--that it is important that we fill this bench without undue delay now that the people have spoken.
It is the American people who I believe have made a choice in the type of Justice they want confirmed to the Court. They have determined that what our country needs is a Justice committed to the rule of law and to the Constitution--not politics, not value judgments, but enforcing the law as written. I look forward to helping the new administration deliver that for the American people.
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