FILLING THE SUPREME COURT VACANCY; Congressional Record Vol. 162, No. 28
(Senate - February 23, 2016)

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[Pages S925-S926]
From the Congressional Record Online through the Government Publishing Office []


  Mr. McCONNELL. Mr. President, the signs of the season are all around 
us. Volunteers are knocking on doors,

[[Page S926]]

caucusers are caucusing, voters are voting, and countless ballots have 
been cast already in places as diverse as Council Bluffs, Nashua, and 
Myrtle Beach. Thousands more Nevadans are making their voices heard 
today, and Americans in over a dozen more States will have an 
opportunity to do the same next week.
  It is campaign season. We are right in the middle of it, and one of 
the most important issues now is this: Who will Americans trust to 
nominate the next Supreme Court justice? The Presidential candidates 
are already debating the issue on stage. Americans are already 
discussing the issue among themselves, and voters are already casting 
ballots--in the case of the Democratic leader's constituents on this 
very day--with this issue very much in mind.
  One might say this is an almost unprecedented moment in the history 
of our country. It has been more than 80 years since a Supreme Court 
vacancy arose and was filled in a Presidential election year, and that 
was when the Senate majority and the President were from the same 
political party. It has been 80 years.
  Since we have divided government today, it means we have to look back 
almost 130 years to the last time a nominee was confirmed in similar 
circumstances. That was back when politicians such as mugwumps were 
debating policy like free silver and a guy named Grover ran the 
country. Think about that.
  As Senators, it leaves us with a choice. Will we allow the people to 
continue deciding who will nominate the next Justice or will we empower 
a lameduck President to make that decision on his way out the door 
  The question of who decides has been contemplated by many, including 
our friends on the other side of the aisle. We already know the 
incoming Democratic leader's view. The senior Senator from New York 
didn't even wait until the final year of President George W. Bush's 
term to declare that the Senate ``should reverse the presumption of 
confirmation'' and ``not confirm a Supreme Court nominee except in 
extraordinary circumstances.''
  We also know how the current Democratic leader feels about judicial 
nominees from a President of the other party. This is what he said:

       ``The Senate is not a rubberstamp for the executive 
     branch,'' he said. ``Nowhere in [the Constitution] does it 
     say the Senate has a duty to give presidential nominees a 
     vote. It says appointments shall be made with the advice and 
     consent of the Senate. That's very different than saying 
     every nominee receives a vote.''

  What about the views of the top officer of this body, the President 
of the Senate? Joe Biden was a Senator for many decades. He was a loyal 
Democrat. He developed enduring friendships in both parties, and before 
becoming Vice President, he served here as chairman of the Judiciary 
Committee. Let's consider what he said in circumstances similar to 
where we find ourselves today. It was an election year with campaigns 
already underway, a President and a Senate majority from different 
political parties, just as we have today. This is what appeared on page 
A25 of the Washington Post:

       Sen. Joseph R. Biden Jr. (D-Del.), chairman of the 
     Judiciary Committee, has urged President Bush not to fill any 
     vacancy that might open up on the Supreme Court until after 
     the November election. Warning that any election-year nominee 
     ``would become a victim'' of a ``power struggle'' over 
     control of the Supreme Court, Biden said he would also urge 
     the Senate not to hold hearings on a nomination if Bush 
     decided to name someone.

  The article continued, quoting then-Senator Biden:

       ``If someone steps down, I would highly recommend the 
     president not name someone, not send a name up,'' Biden said. 
     ``If he [Bush] did send someone up, I would ask the Senate to 
     seriously consider not having a hearing on that nominee.''

  And then, this:

       ``Can you imagine dropping a nominee, after the three or 
     four or five decisions that are about to [be] made by the 
     Supreme Court, into that fight, into that cauldron in the 
     middle of a presidential year?'' Biden went on. ``I believe 
     there would be no bounds of propriety that would be honored 
     by either side. . . . The environment within which such a 
     hearing would be held would be so supercharged and so prone 
     to be able to be distorted.''
       ``Whomever the nominee was, good, bad or indifferent,'' he 
     added, ``would become a victim.''

  As the current chairman of the Judiciary Committee, Senator Grassley, 
pointed out yesterday, Biden went even further on the Senate floor. He 
said that ``[it does not] matter how good a person is nominated by the 
President'' because it was the principle of the matter, not the person, 
that truly mattered.
  Biden cautioned that ``Some of our nation's most bitter and heated 
confirmation fights have come in presidential election years'' but also 
reminded colleagues of several instances when Presidents exercised 
restraint and withheld from making a nomination until after the 
  One of them was Abraham Lincoln. It offers an example others may 
choose to consider.
  President Obama, like Lincoln, once served in the Illinois 
legislature. It is a place he returned to just the other day to talk 
about healing the divide in our country. He said:

       It's been noted often by pundits that the tone of our 
     politics hasn't gotten better since I was inaugurated. In 
     fact it's gotten worse. . . . One of my few regrets is my 
     inability to reduce the polarization and meanness in our 

  Well, this is his moment. He has every right to nominate someone, 
even if doing so will inevitably plunge our Nation into another bitter 
and unavoidable struggle. That certainly is his right. Even if he never 
expects that nominee to be actually confirmed but rather to wield as an 
election cudgel, he certainly has the right to do that. But he also has 
the right to make a different choice. He could let the people decide 
and make this an actual legacy-building moment, rather than just 
another campaign road show.
  Whatever he decides, his own Vice President and others remind us of 
an essential point. Presidents have a right to nominate just as the 
Senate has its constitutional right to provide or withhold consent. In 
this case, the Senate will withhold it. The Senate will appropriately 
revisit the matter after the American people finish making in November 
the decision they have already started making today.
  For now, I would ask colleagues to consider once more the words of 
Vice President Biden. He said:

       Some will criticize such a decision and say it was nothing 
     more than an attempt to save the seat on the Court in the 
     hopes that a . . . [member of my party] will be permitted to 
     fill it, but that would not be our intention, Mr. President, 
     if that were the course to choose in the Senate to not 
     consider holding hearings until after the election. Instead, 
     it would be our pragmatic conclusion that once the political 
     season is underway, and it is, action on a Supreme Court 
     nomination must be put off until after the election campaign 
     is over.

  That is Vice President Biden when he was chairman of the Judiciary 
Committee in a Presidential election year. Fair to the nominee, 
essential to the process, a pragmatic conclusion--the words of 
President Obama's own No. 2. What else needs to be said?