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Floor Speech

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Mr. CORNYN. Madam President, last week when the Senate was in recess, Justice Stephen Breyer announced he will soon retire from the U.S. Supreme Court. I want to first thank Justice Breyer for his service-- more than four decades, including nearly three decades on the Supreme Court itself.

Although I have disagreed with his rulings from time to time, I maintain deep respect for Justice Breyer's commitment to the rule of law and the integrity of our judicial system.

Last year, when some of our Democratic colleagues renewed their threats to expand the Supreme Court and pack it with partisans, Justice Breyer, to his credit, spoke up. He echoed the comments of the late Ruth Bader Ginsburg and warned about the potentially dangerous consequences of Democrats' Court-packing threats. As I said, I have great respect for Justice Breyer's defense of the Court and the rule of law and protecting the Court as an institution, especially at a moment when sound, principled leadership was needed.

Once again, I want to thank Justice Breyer for his service and wish him a well-deserved retirement.

All eyes are now on the White House as we await news of President Biden's nominee to succeed Justice Breyer. Although this is the President's first opportunity to nominate a Supreme Court Justice, he is standing at a very familiar fork in the road, outlining two separate and distinct paths.

One of those paths involves convention and virtuous leadership. President Biden could select an individual whose stellar credentials and experience are matched by a deep respect for the rule of law and the Constitution. He could nominate someone who agrees that Supreme Court Justices are meant to act as umpires, not as players in the game. They are supposed to call balls and strikes, not to help their preferred team score runs.

Of course, there is another path, one that was cleared and paved by the radical left. The President could listen to the liberal activists who want to select somebody who will deliver partisan wins regardless of the facts. He could nominate someone who would attempt to use a position on the Supreme Court to rule based on personal policies or preferences rather than what the law commands a Justice to do.

As I have said, President Biden has found himself looking down these two diverging paths a number of times. When he first took office, he could have worked with Republicans to build on Congress's perfect record of bipartisan pandemic relief. With the border crisis, he could have endorsed bipartisan efforts to address the virtually uninhibited flow of migrants across our southern border during this last year.

With a 50-50 Senate, he could have embraced the opportunity to work across the aisle to make progress on our shared priorities, but at every single decision point, the President basically ignored the opportunity to build consensus. Even when he supported the infrastructure bill, it was only as a last resort after his attempt, along with that of Speaker Pelosi, to join the infrastructure bill to the Build Back Better bill, which he knew did not have the support that it needed, even among Members of his own party.

The President has repeatedly bowed to the radical left's demands, and the results speak for themselves. Last spring, the American people were stuck with a nearly $2 trillion bill for unnecessary partisan spending. Illegal border crossings remain at historic highs, with more than 2 million apprehensions since January of last year when he took office.

Many of our Democratic colleagues abandoned their longstanding support for the filibuster or the bipartisan consensus-building requirement of our cloture rules and tried to blow up the foundation of the Senate in order to clear a path for even more partisan legislation.

Now we find ourselves 1 year into a Democratic-controlled government with a short list of legislative accomplishments.

Time and time again, President Biden has abandoned bipartisanship and tradition in order to appease the progressive base in his political party, and the American people are the ones who have suffered the consequences.

Once again, I would hope he would remember his inspiring words at his inauguration on January 20, just about a year ago, where he called for a healing of the divisions in our country and working together in a shared desire to improve the quality of life for Americans and to make their place in the world one of leadership and peace.

The left has already begun its campaign to replace Justice Breyer with a judicial activist. In fact, the very fact that Justice Breyer decided to retire is an indication that the radical left is successful in browbeating a sitting Supreme Court Justice into retiring rather than finishing his term of office.

But clearly these folks on the left don't want him to be succeeded by another principled jurist who evaluates cases based on the law and the facts. They want a partisan who will deliver sure political wins. Our Nation does not need a radical ideologue serving on the highest Court in the land.

We all know that the Supreme Court is a third and coequal branch of government. We also know that the role of a judge is far different from that of a legislator. Legislators are elected in order to represent their constituents and make public policy proposals that hopefully will become law which will improve their lot in life and their future.

The Supreme Court--or any judge, for that matter--is not supposed to start with a desired result and work backward from there. The Supreme Court is not a substitute for working together to pass legislation in the legislative branch with the signoff by the executive branch. The Supreme Court--or any court--is not a failsafe that can be utilized to deliver particular results that can't be secured through the legislative process.

Judges should not be legislators in black robes. They shouldn't advocate for any particular policy outcome or promote a specific agenda. Our democracy and the rule of law depends on Justices embracing not personal politics, not personal beliefs, and not a preference for a particular result in a case. The key to our constitutional Republic is a judge that calls balls and strikes, who decides each case based on the facts and the law.

It is important because, every time a judge acts as an activist and takes away an issue that should be decided by the political branches, it shrinks the capacity of the American people to make their own choices at the ballot box when they elect members of the legislature and executive branch.

In fact, that is the reason why our Constitution gives Justices lifetime tenure--so they will be insulated from politics, not so they can use that tenure in order to impose their political preferences without retribution by the voters.

Conversely, those of us in Congress are precisely elected in political elections for policy purposes, and the fact is we either listen to our constituents and are guided by their desires or they hold the power to replace us and retire us at the ballot box. That is why our Founders gave courts the jurisdiction to apply and interpret the law, not to make the law up as they go along.

We need dedicated public servants who follow the statutes passed by Congress and signed by the President into law, and the Constitution representing the fundamental law of the land, and we need judges to make decisions based on what that law says, not, again, on what their preferred outcome may be.

So as the President approaches these two paths, I hope he will ignore the clamor on the left and make a choice that serves in the best interest of the American people and send us a nominee who respects the law and the limited role of a judge in our political system, because a judge is not supposed to substitute his or her opinion for that of the elected representatives of the people.

And surely the Constitution itself is the fundamental law of the land. And, as Chief Justice Marshall said in Marbury v. Madison, the decisions of the Court interpreting that Constitution are the last word.

But what we need is what Chief Justice Roberts called humility; that judges understand their important but limited role under our form of government not to supersede the policy judgments of the elected officials just because they can because they are the last word. We need judges who will demonstrate that sort of humility, who understand that, yes, they have a tough and important job to do but that it is within certain guardrails and limitations about what that role should be.

As the President looks down these two divergent paths, I hope he will ignore the clamor on the left and make a choice that serves the best interest of the American people. And he would do that by choosing a mainstream nominee.

The President promised during his campaign to nominate an African- American woman to the Supreme Court, making that a historic first. As the President weighs his decision, I want to remind him and our Senate colleagues that diversity extends far beyond just gender and skin color. We need a diversity of education, background, and experience.

For example, all of the current Justices on the Court but one were educated at Ivy League colleges and universities. In fact, when Justice Barrett was confirmed, she became the first sitting Justice to attend a law school other than Harvard or Yale. It is true that the current Justices largely hail from coastal metropolitan areas, and one-third of the sitting Justices have previously served on the DC Circuit Court of Appeals.

So I agree that diversity on the highest Court in the land is a valuable asset, and I encourage the President to consider nominees that can bring unique experiences, education, and viewpoints of all types to the Supreme Court.

Whoever the President chooses will be evaluated based on their qualifications, experience, and ability to separate politics from the rule of law. That is the job of the Senate Judiciary Committee, on which I am proud to serve.

I presume we would treat any nominee--regardless of ethnicity, race, or gender--exactly the same in extending to them a respectful and dignified process. Certainly, no nominee is going to get points, so to speak, toward their confirmation vote because they are of a particular race, ethnicity, or gender. Each nominee will be thoroughly vetted and questioned, just as prior nominees have been.

But unlike some of the mudslinging that we saw during the confirmation of Justice Kavanaugh, I expect this process to be fair and dignified. We must be careful, thorough, and comprehensive because the American people and the institution of the Supreme Court deserve nothing less.

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