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tv   US Senate  CSPAN  February 24, 2016 4:00pm-6:01pm EST

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this committee, they wrote, "will not hold hearings on any supreme court nominee until after our next president is sworn in on january 20, 2017." mr. president, this marks an historic dereliction of the senate's duty and a radical departure not just from the committee's past traditions, but from its current practices. i know that my good friend, chairman grassley, cares a great deal about maintaining the legacy of the judiciary committee and the propriety of its proceedings. under his leadership, we've seen the committee put country before party and move consensus bipartisan proposals. and i hope that chairman grassley would approach the task of confirming our next supreme
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court justice with the same sense of fairness and integrity. i still hope that. but i was very disappointed to learn that yesterday chairman grassley gathered only republican committee members in a private meeting where they, as i said, they unilaterally decided behind closed doors to refuse consideration of a nominee. the decision to foreclose even holding a hearing for a nominee to our nation's miest court -- nation's highest court is shameful, and i suspect that the american people share that view. the supreme court is a central pillar of our democracy. the women and men who sit on that bench make decisions that
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touch the lives of every single american, regardless of party or political persuasion. now the senate must do the same. we must honor our solemn duty to uphold the constitution and to ensure that americans seeking justice are able to have their day in court before a full bench of nine justices. i urge my colleagues to reject the impulse to put politics before our sworn duty to uphold the constitution. i would thank you, mr. chair, and yield to my colleague from utah. mr. lee: mr. president? the presiding officer: the senator from utah.
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mr. lee: supreme court justice antonin scalia was an extraordinary man. his contributions to this country and to the american people whom he faithfully served from the bench are so prodigious that it will take generations for us to fully comprehend our debt to him, our debt of great gratitude. his untimely recent death is a tragedy, and his legacy is a blessing to friends of freedom throughout this country and everywhere. justice scalia was a learned student of history and a man who relished perhaps more than any other a spirited, lively debate. so it's fitting that his passing has sparked a conversation in america, a spirited conversation about the constitutional powers governing the appointment of supreme court justices and the historical record of supreme court vacancies that happened to open up during a presidential
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election year. this debate gives the american people and gives their elected representatives in the senate a unique opportunity to discuss our nation's founding charter and our nation's history at a time when our collective choices have very real consequences. so it's important that this debate proceed with candor, with mutual respect and with deference to the facts. in that spirit, i'd like to address and correct a few of the most pernicious errors and inaccuracies, fallacies and fabrications that we've heard from some of the loudest voices in this debate over the last few days. from the outset i've maintained that the senate should withhold its consent of a supreme court nomination to fill justice scalia's seat and to wait to hold any hearings on a supreme court nominee until the next
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president, whether it's a republican or whether it's a democrat, is elected and sworn in. this position is shared by all of my republican colleagues on the senate judiciary committee, consistent with the senate's powers in the appointment of federal judges and supported by historical precedent. in response, some of my colleagues on the other side of the aisle and many in the media have resorted to all manner of counterarguments ranging from the historically and constitutionally inaccurate to the absurd. and in many cases the claims made by some of my colleagues today flatly contradict their own statements from the past. i believe the plain meaning of the constitution and the historical record are sufficiently clear to stand on their own as evidence that there is absolutely nothing unprecedented and absolutely nothing improper about the senate choosing to withhold its
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consent of a president's nominee to the supreme court. so i'd like to focus on one particular allegation offered by some of my colleagues on the other side of the aisle. with the letter and the spirit of the constitution as well as their own words standing against them, many have turned to fearmongering in a last-ditch effort to win the debate. they claim that leaving justice scalia's seat vacant until the next president nominates a replacement would somehow inflict a profound institutional injury on the supreme court by disrupting the resolution of this term's cases before the court, a term including important cases on abortion, immigration, religious liberty and mandatory union dues, among others. ensnaring the court in endless gridlock with an evenly split eight justices on the bench and leaving it short staffed for an
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unprecedented and potentially prolonged period. here the doom sayers are on weak ground indeed. let's look at each of these claims in turn. first, it is true, as many have claimed, that the business of the supreme court will be -- first we have to address the question of whether it is true, as many have claimed, that the business of the supreme court will somehow be obstructed or otherwise disrupted if the senate withholds its consent of president obama's nominee. and i maintain that this is not true. it's absolutely not true. in recent history, in fact since the nomination of justice scalia to the supreme court in 1986, it has taken more than 70 days on average for the senate to confirm or reject the nominee after that nominee has been formally submitted by the president to the senate for its advice and consent. more than 70 days on average.
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and in many cases it's taken far longer for the senate to either grant or withhold its consent. it took this body 108 days to reject judge robert bork and 99 days to confirm justice clarence thomas. presuming the modern historic average would hold true for any future nominee, even if president obama were to announce and refer a nominee to the senate today for our advice and consent, the process would carry through until at least early may but significantly, the supreme court stops hearing cases in april, which means that even if president obama were to announce a nominee today, right now, and even if the senate were to confirm that nominee in a period of time consistent with historical standards, that individual would not be seated in time to hear and rule upon
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any of the cases that are currently on the court's docket, on any of the cases that are before the court in this term. in other words, it would be historically anomalous for any of the cases currently pending before the court to be decided this term by a nine-member supreme court, no matter what the senate chooses to do regarding any future nominee. let's put this in perspective. in this scenario, a scenario endorsed by senate democrats, it is highly unlikely that the nominee to fill justice scalia's seat would hear oral arguments until the beginning of october. literally just a few weeks, just weeks before the presidential election. this proves that the main argument made by president obama and his allies is based on a myth, in their telling the president's choice to withhold -- the senate's choice to withhold the nominee will
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deny president obama a supreme court justice who will serve during his final year in the white house. but in reality it is unlikely that the president's nominee will join the supreme court until the country is just weeks away from choosing president obama's replacement. i think most americans recognize the problem of a president having the ability to reshape the supreme court in his image on his way out of office, and that is exactly why the senate is choosing to withhold its consent in this case. this is the right, of course, not because of anything the senate does or does not do and not because of anything the president does or does not do. it is simply a function of the unfortunate timing of justice scalia's death. claims to the contrary are flatly contradicted by an emper cal analysis of the court's history. second, the senate's decision to
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withhold consent will not lead to an intractable impasse or hopeless gridlock, even if the eventual appointee were to miss the entirety of the next term, which starts in october 2016 and runs through the end of june 2017. in each of its previous five terms, the current court has decided only 16 cases on average, or 23% of its caseload by a 5-4 majority. and justice scalia was one of the five justices in the majority in those 5-4 cases only about half of the time on average. that means that the vacancy left by justice scalia would result in about eight cases out of dozens being decided by a 4-4 split. in fact, in the last term served by justice scalia, the last complete term he was in the
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majority in only six of those 5-4 cases. and in the year before that, the preceding term, justice scalia's second to last, he was in the majority in only five of the cases decided by a 5-4 majority. what does this mean? well, it means that it is likely that the effect of his absence on the final vote and ultimate disposition of cases will be lower than even the average suggests. instead of eight cases being decided by a 4-4 split in justice scalia's absence, it is likely to be closer to five or six as it has been in the last two full terms of justice scalia's service on the court. and let's not forget what should be obvious. the sky does not fall on a 4-4 split occurs on the supreme court. rather, the decision of the lower court is left standing.
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and if there is the prospect of a 4-4 split on a particularly salient matter, the court always has the option of scheduling or rescheduling the hearing for a later time when the court will have all nine justices presiding and hearing the case. finally, mr. president, a vacancy on the court lasting through the presidential election season will have no greater effect on the court's ability to decide cases than any number of instances in the past where the court has had to decide matters with eight justices or even fewer. as recently as the court's 2010-2011 term, the court had to decide over 30 cases with eight or fewer justices, almost entirely as a result of recusals arising from justice kagan's nomination. likewise, following the retirement of justice powell in
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1987, the court had to act on 80 cases with eight or fewer justices. this was the result of democratic opposition to judge bork and the eventual confirmation of anthony kennedy coupled with dozens of recuses by justice kennedy and other judges in that term. in 1945 the court functioned as an eight member body while justice robert jackson was serving as a prosecutor in nuremberg acting on a full-term caseload without him. tellingly, when justice jackson expressed concern about missing some cases and actually considered returning early for that reason, justice felix frankfurter wrote to encourage justice jackson to stay on as a prosecutor stating that his absence was not -- quote -- "sacrificing a single interest of importance." close quote. now compared to today, the court had a larger workload and issued
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many more opinions during that term in which justice jackson was absent. this suggests that a vacancy of similar duration as jackson's full-term sabbatical would be even less damaging to the court's functioning than the absence of justice jackson, an absence that, to reiterate, did not sacrifice a single interest of importance. the next president's future nominee is unlikely to miss as many cases as justices kennedy or jackson missed. these are the facts, mr. president. they can't be ignored nor can they be wished away. if we're going to have a serious, honest debate about the vacancy left by justice scalia's tragic passing, we must proceed on the basis of these facts. thank you, mr. president. i yield the floor.
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the presiding officer: the senator from new hampshire. mrs. shaheen: mr. president, since the beginning of our nation, the united states senate has maintained an important bipartisan tradition of giving fair consideration to supreme court nominees. article 2, section 2 of the constitution is unambiguous about the respective duties and responsibilities of the president and the senate when there is a supreme court vacancy. the founders did not intend these roles to be optional or something to be disregarded. article 2 also states that the president shall hold his office during the term of four years. not three years or three years and one month, but four full years. and the constitution plainly says that it is the president's duty to nominate a supreme court justice, and it is the senate's
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duty to provide advice and consent on that nomination, and throughout our history, senators have done their constitutional duty by considering and confirming supreme court justices in the final year of a presidency. in fact, the senate has done that 14 times. most recently, in 1988, when the senate confirmed justice and any kennedy, who was president reagan's nominee to the supreme court, he sent that nomination over to the democratic majority in this body, and almost 28 years ago exactly to the day, in february of 1988, the democratic majority in the senate confirmed republican president ronald
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reagan's justice judicial nomination, anthony kennedy, unanimously 97-0. they didn't debate whether it was a presidential year and whether they could act. it was in the middle of a hard-fought election. it was not at all clear what the outcome of that election was going to be. and since 1975, the average length of time from nomination to confirmation vote for supreme court, that's the average length of time. sometimes it's taken longer and sometimes it's been shorter, but since 1975, the average length of time has been 67 days because our predecessors in the senate recognized how important it is for the supreme court to be fully functioning. unfortunately, this week we're seeing this bipartisan tradition regarding the supreme court being put at risk.
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yesterday we heard the majority leader say that if the president nominates a person to the supreme court, any person, no matter how superbly qualified, that there will be no hearings and no vote, and we've even heard some senators say that they would refuse to meet with any potential nominee. i think that's very unfortunate. it's unfortunate for a number of reasons. probably first and foremost because the people of the united states expect us to work together here in washington to do the job of the country, to do the jobs that we were elected to do. also because the current president's term ends in january of 2017, that's more than 300 days from now, and during that time the supreme court will hear many important cases, but if the
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majority in the senate has their way, the court will do so without a full roster of justices. as brianne garad of the constitutional accountability center has said, and i quote -- "the consequences of the supreme court being without all nine justices for so long can hardly be overstated. most significant, a long-standing vacancy would compromise the court's ability to perform one of its most important functions. that is, establishing a uniform rule of law for the entire country." end quote. every senator here has sworn to support and depend -- defend the constitution. full stop. that's -- that's the oath that we have taken. and our oath doesn't say uphold the constitution most of the time or only when it's not a presidential election year or only when it's convenient for us
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or only when we like the ideology that's being presented to us. our oath says uphold and defend the constitution every day no matter what the issue is that comes before us. the american people expect us as senators to be faithful to our oath. they also expect us to do our jobs, regardless of whether it's a presidential election year. i believe we should respect our oath of office. i believe we should do the job that we were sent here to do by the american people. i believe we should follow the constitution. as former justice sandra day o'connor said last week -- and i quote again -- "i think we need somebody on the supreme court now to do the job, and let's get on with it." mr. president, i say let's get on with it, and i yield the floor.
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mrs. shaheen: mr. president, i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:
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a senator: mr. president? the presiding officer: the senator from maryland. mr. cardin: i would ask consent that the quorum call be dispensed with. the presiding officer: without objection. mr. cardin: mr. president, i
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join the nation in offering my heartfelt condolences to the family and friends of justice scalia who was an associate justice of the united states supreme court. for more than three decades, justice scalia devoted himself to the rule of law and public service at the highest levels. whether you agreed or disagreed with his decisions, there is no debate about justice scalia's profound impact on the supreme court. he served his country with great honor. i was privileged to serve as a member of the judiciary committee when i first joined the united states senate. i participated in confirmation hearings for judicial nominees for both president bush and president obama, including the hearings for sonia sotomayor and elena kagan. article 2, section 2 of the constitution states that the
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president shall nominate and by and with the advice and consent of the senate shall appoint judges of the supreme court. the american people twice elected president obama to four-year terms in office. their voices have been heard very clearly. elections have consequences, and president obama must carry out the constitutional responsibilities and duties of his office by nominating a successor for justice scalia. the president is simply doing the job that the american people elected him to do. the president doesn't stop working simply because it is an election year. he has more than 300 days left in office. as do the senators that will face the voters this november. congress should not stop working either in this election year and should earn their full paycheck. so my message, mr. president, is
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clear. to my colleagues, do your job. it's our responsibility to take up the nominations that the president will submit to us. i think the american people will ultimately demand that the senate does its job and not threaten to stop working simply to coddle and ponder the most extreme and fringe elements of its base as was done when the government shut down a few years ago after the flirtation with the default of the full faith and credit of the united states government. just as the president is carrying out his constitutional duties, so should the senate. my colleagues in the senate took an oath to support the constitution. it is only february, leaving the senate plenty of time before the elections to consider a nomination that president obama
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would make in the coming weeks. i find it disgraceful that my republican colleagues would try to obstruct the nomination before the nominee has even been named. our job as senators is to examine the qualifications of the nominee for the position. the senate should get to work once president obama makes his nomination, in a process that usually takes around two months. if you look over the history of the nominations that have been made by a president on supreme court nominees in the amount of time that the united states senate has in considering those nominations, the average is two to three months. let me remind you, we have almost a year left in this term of congress. there is plenty of time. the senate judiciary committee has historically reported out supreme court nominees to the floor even if the nominee did not garner a majority vote in the committee, and then let the senate work its will to either confirm or reject the president's nominee. the tradition of the united
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states senate is to allow each senator to vote yea or nay on a nomination to the supreme court of the united states. that's been the tradition of the united states senate. of course, every senator has the right to vote no. senators were elected to six-year terms by the citizens of their state and have the right and obligation to vote. president obama was elected by the people of the united states for a four-year term and has the right and obligation to nominate. history has shown that when the roles were reversed and the democrats held the majority in the senate, supreme court and judicial nominees for republican presidents were given hearings and up-and-down votes regardless of when the vacancy occurred. justice kennedy was confirmed for the supreme court in the last year of president ronald reagan's final term in 1988. other examples of presidential election year confirmations include justice murphy in 1940, justice cardozo in 1932 and
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justice brandeis in 1960. and the democratic-controlled senate confirmed numerous judicial nominees of president george w. bush throughout his final year in office, including nearly a dozen judges in september, 2008, just weeks before the election of president obama. while i might have picked different judges as a senator, i voted to confirm the vast majority of president bush's judicial nominations in his final year in office. i will continue to carry out my constitutional responsibilities that i undertook when i became a senator and swore to support the constitution. in my view, justice scalia would expect nothing less than for the president and the congress to follow the letter and spirit of the constitution, our nation's most fundamental legal document. justice scalia wrote a 2004 opinion about the importance of having all nine justices on the supreme court, stating that
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without a full complement of justices, the court -- and i'm quoting from justice scalia -- "will find itself unable to resolve the significant legal issues." end quote. and pending cases that vacancy -- quote -- "impairs the functioning of the court." end quote. justice scalia understood the importance to have nine supreme court justices. are we really going to allow that there be a vacancy for that ninth seat for a year? former justice rhenquist when he was an associate justice of the supreme court in 1972 wrote that the prospect of affirming lower court judgments by equally divided court was undesirable because the principle law presented by each case is left unsettled when there is a circuit split justice rhenquist continued the prospect of affirmation by an equally divided court unsatisfactorily enough in a single case presents
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even more serious problems where companion cases reaches opposite results are heard together. affirmation that each such conflicting results by an equally divided court will lay down one role in athens and another role in rome with vengeance. with justice rhenquist was saying whether you have different appellate court decisions, one, one circuit ruling one way, another circuit ruling another way, they come up to the supreme court. we have conflicting interpretations, we had the supreme court of the united states to resolve that difference. what happens if there's a four-four vote? we have different rules in the fourth circuit than in the third circuit? that's why we have a supreme court. and for a year plus we're going to say we're not going to allow the full coachment to be there? i'm privileged to serve as the ranking member of the senate on foreign relations and the ranking member and former chair
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of the hill seekee commission. as i meet with heads of foreign governments and judges overseas, i feel great pride in that america has created independent judges where a neutral fact finder decides the case based on the law and the facts and couldn't be fired for making a decision that offends the government or the politically powerfully. i really do believe the supreme court and federal judiciary are some of the crown jewels ever our american system of government. and the envy of the world. and that is why i am so disgusted and disappointed today with the majority's attempt to advocate the responsibilities as senators. and as americans by not doing their job simply obstructing the operation of good governance for partisan political purposes. i say that because the republican members of the judiciary committee have written a letter saying they're not going to take up this nomination. there's not going to be hearings. do your job.
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our job is to consider a nomination that is submitted by the president. what the republicans are effectively trying to do is to temporarily shrink the supreme court from nine to eight justices and shorten the term of the president from four years to three years. that's not in the constitution. this is disgraceful and indefensible and frankly reminds me of the arguments republicans used in 2013 when they accused president obama of trying to pack the court, when they announced they would not support further nominees to the united states court of appeals for the district of columbia circuit. no, president obama was not trying to pack the court by changing the number of seats on the court. he was merely nominating individuals to existing vacancies when the court that were authorized by congress by an act of president's responsibility. let me remind my colleagues that congress has the authority to
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pass a statute that is signed into law by the president or override his veto. but congress cannot and the senate should not do is purport to shrink the size of the court be it the supreme court or district court or circuit court by simply refusing to even consider a nominee until the next president takes office. if this decision by the republicans is allowed to stand, it would create an artificial vacancy for over a full year spanning two terms of the court which would be unprecedented since the civil war, mr. president and recall that for the last century, supreme court nominees have received timely hearings and considerations but a senate judiciary committee -- by the senate judiciary committee and the full senate. it matters if the supreme court is not fully operational and gridlocks in a 4-4 tie. the decisions of the lower court standses even when there are splits among circuits where only
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the supreme court could apply the law. this could lead to more uncertainty, litigation, waste of time and deny and delay justice for the american people. it would be a great tragedy and potentially do long-term damage to the supreme court and independent judiciary if the republican strategy of delay and obstruction prevails. i urge my colleagues do your job. do your job. when the president submits a nomination for supreme court vacancy created by the death of justice scalia, establish a reasonable schedule for the senate and each ch little hundred members to quote yea -- vote yea or nay on the person the president submits as the nominee for the supreme court. that is our responsibility. we need to do our job. mr. president, i yield the
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floor. a senator: mr. president? the presiding officer: the senator from massachusetts. mr. markey: thank you, mr. president. chief justice warren burger once explained the significance of the united states constitution as follows. he wrote that -- quote -- "in the last quarter of the 18th century, no nation in the world has governed with separated and divided powers providing checks and balances on the exercise of authority by those who governed." the chief justice went on to call the constitution -- quote -- "a remarkable document, the first of its kind in all of human history." chief justiceer was right. it's remarkable for not only what it says but how it says it and some places the constitution speaks in poetry like the
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preamble that begins with "we the people from the united states" and talks of a more perfect union and the blessings of liberty. and other places the constitution is simple prose but given the importance of every single word in the text of the constitution, the founding fathers wrote in plain, concise and understandable language. that clarity can be found in the advice and consent clause of article 2, section 2. its words could not be clearer. it simply states that the president of the united states and i quote, "shall nominate and by and with the advice and consent of the senate shall appoint ambassadors of the public ministers and consuls and judges of the supreme court." there's no ambiguity there. it's not an invitation to reinterpretation. the president's obligation under
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the constitution is crystal clear. he shall nominate someone to fill a vacancy on the supreme court. president obama has stated that he will fulfill his obligation and send the senate an eminently qualified nominee to fill the vacancy created by the unfortunate passing of justice antonin scalia. when president obama does that, it will be the senate's turn to fulfill its obligation under the constitution. the text of the constitution on the senate's responsibility is similarly clear. the senate is to provide its advice and consent. let me repeat that. the senate is to provide its advice and consent. advice and consent does not mean that the senate disregards the constitution. it ignores a nomination to the supreme court.
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it is advice and consent, not avoid and contempt. the advice and consent clause is not the constitutional equivalent of roger mayer's home run statistics. there's no asterisk in the constitution that directs readers to small print that says "except in an election year." there's no fine print in the constitution that says the senate is to give its advice and consent except in the last year of a president's term. despite the clear constitutional instruction on how the executive and legislative branches are to handle a vacancy on the supreme court, the republicans on the judiciary committee yesterday unilaterally decided that they would not hold a hearing on a supreme court nominee to fill justice scalia's seat until after the upcoming presidential
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election. this partisan decision to obstruct is a drastic departure from long established practice and procedure in filling supreme court vacancies. the senate has routinely confirmed supreme court justices in the final year of a presidency. in fact, it has happened more than a dozen times. most recently with the confirmation of justice anthony kennedy during the last year of ronald reagan's second term of president. in the last 100 years the senate has taking action on every supreme court nominee regardless of whether the nomination was made in a presidential election year. so the american people now have to deal with two vacancies. one on the supreme court and the other in the judgment of the senate republicans because they seem willing to go to unprecedented lengths to stop this constitutionally mandated process from moving forward.
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republican senators reading words into the constitution to reach the result they want is no different from the so-called judicial activism on the bench that they routinely decry. the republicans would rather shirk their constitutional responsibility than let president obama appoint another justice to the court. they'd rather depierve the country of a fully functioning supreme court not just for the remainder of this term but for the next term of the supreme court as well than fulfill their constitutional duty. now where is that? well, because the justice of the supreme court has only one vote but a single seat on the court and a single vote that comes with it can carry enormous significance. we need only look at this divided supreme court's recent 5-4 decisions to understand why the republicans prefer a vacancy on the supreme court with only
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eight justices instead of nine, the court's decisions can deadlock with a 4-4 vote. a tie vote leaves in case a lower court decision that has been appealed to the supreme court. a 4-4 deadlock can have far-reaching consequences. take bush vs. gore, the 2000 decision that stopped florida's vote recount in the 2000 presidential election. bush vs. gore was decided by a 5-4 vote. if a seat on the supreme court had been say indicated -- vacated resulting in a 4-4 vote, then the outcome of that election could have been different. so that is pretty much the consequence here. it is going to have without question some impact on how these decisions are going to be made but it is without any full comprehension of what that change could be only because
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nine human beings are involved. but there is a responsibility that we have here in the senate to ensure that we in fact have a full supreme court. the president shall nominate, that is without question the duty that he has. we shall provide advice and consent. that's our duty. you don't have to give consent at the end ever the day. we can have a vote out here on the senate floor to determine whether or not someone is in fact going to be confirmed but we have that constitutional responsibility. there is still ample time for the president to submit a nomination for the judiciary committee to hold hearings on it and for the full senate to vote on it. the united states constitution remains a remarkable document. let us treasure it, not twist it. let us respect it, not run from it. let us fulfill our
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constitutional obligations and have a hearing on the president's nominee and a vote by the senate. in other words, to the united states senate, do your job. it's in the constitution. there's no way you can run from a clear interpretation of what the constitution requires us to do once the president has nominated a new candidate for the supreme court. there's direct instructions for the president in the constitution. there are direct instructions for us here in the senate. let's just hope that after the president does nominate a candidate, that this body deliberates. listens to all the testimony and then has a vote on whether or not that person is qualified to serve on the supreme court. the only way that's going to happen is if this body does its job. and so we ask the members of the majority to ensure that that
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happens. mr. president, i yield back the balance of my time. mr. president, i question the presence of a quorum. the presiding officer: the clerk will call the roll. quorum call: quorum call:
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quorum call:
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quorum call:
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mr. blumenthal: mr. president? the presiding officer: the senator from connecticut. mr. blumenthal: mr. president, i ask the quorum call be lifted. the presiding officer: without objection. mr. blumenthal: thank you, mr. president. i'm here today to urge this body to fulfill its constitutional duty and take action on the supreme court nominee that shortly will be submitted by president obama. i come here not only as a united states senator but as a former federal prosecutor, a united states attorney in connecticut from 1977-1981, a former state attorney general for 20 years and a veteran of four arguments
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before the united states supreme court. i'm also here as a former law clerk to justice harry blackmon and i share with the presiding officer as having had that sprewell important and formative experience. of course it shapes my view as well of the court. i have immense respect and awe for the position and power and phenomenon independence of the united states supreme court, its role in our democracy and its history of scholarship and public service. i have the same admiration for justice antonin scalia, and i take this moment to remember his uniquely american life as the son of an immigrant. he was a dedicated public
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servant, a gifted writer, a powerful speaker. i heard him speak on a number of occasions and argued before him on the court in a number of memorable exchanges. his sense of humor as well as the quickness of his wit and insight remain with me now. as all of my colleagues will attest, he dedicated his life to serving the public, which can be demanding and difficult at times, but his life showed, as we know, that the difficulty and demands are well worth the rewards. my thoughts are with his wife maureen and his entire family. my personal view, speaking only for myself, is that one way to honor justice scalia is to adhere to the constitution, to follow its words which are very
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explicit on the topic of nominating and confirming a supreme court justice which gives us the role of advising and consenting after the president has nominated, and i hope that we will fulfill our constitutional duty to advise and consent to do our job. literally, to do our job as we were elected and took an oath of office to do. that's what we're paid to do, our job, as prescribed by the constitution. i fundamentally reject the notion that the senate's refusal to act as laid out in no uncertain terms by my republican colleagues fulfills this obligation. in fact, the abdication of responsibility through this rejection is disrespectful to
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that document and to the court itself. president obama has indicated that he is currently engaged in a thoughtful and deliberative process working to select a nominee with the intellect and integrity that will persuade the american public and hopefully also the senate to support his suggestion, and his nomination would allow the supreme court to function again with nine members that are essential to its deliberation. the conclusions that my colleagues advance during such a process will, of course, be to each of them to decide. i will be in fact among the most exacting and demanding of our
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colleagues who question that nominee in a hearing, who seek answers in screening and researching the expertise and experience of that person. in no way should the judiciary committee where i serve or the united states senate where we all must vote serve as a rubber stamp. no way. no rubber stamp. we must advise as well as consent, and advising means being demanding and careful. but i think we have an obligation to go through that process. we can't just say sight unseen no. we can't say that we are going to leave it to the next elected
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senate or the next elected president. we have been elected, he has been elected to do our job. and the supreme court must have a full complement of judges or justices to effectively address some of the most complex issues and consequential legal challenges that our nation faces today. put aside the merits, whether it's immigration or affirmative action, women's reproductive rights, voting rights. decisions are needed. a lack of decision has consequences. just as elections have consequences. obstruction has consequences, too, and we cannot afford to weaken the federal judiciary's capacity for effective governance. we can't allow a manufactured
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crisis in the senate to plunge another branch of government into gridlock and to plague the judiciary with the ?aim partisan particles that is so detested by the american people. in fact, the rejection of our constitutional responsibility to do our job would epitomize the gridlock and partisan contention that america finds so abhorrent today. like my colleagues, i go around the state of connecticut, and what the people say to me more commonly than anything else is why can't you do your job, why can't you get stuff done? let's get this done. statements by majority leader mcconnell and chairman grassley, as well as a number of my other colleagues, have indicated that president obama's nominee to the highest court in the land should not even be
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considered but turning our back on that constitutional obligation to act would be equivalent to shutting down the government. it is of exactly the same kind of consequence. it may not be as far-reaching in its immediate effects, but it has the same long-term consequences. which are not merely to prevent decisions and action from happening, necessary decisions and actions, but also to undermine credibility and faith and trust in our government. now when it comes to the congress or the president, maybe that credibility is of lesser importance. but it is the chief asset of our judiciary. the supreme court of the united states has no armies or police
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force. it commands the nation's respect through its credibility. it enforces obeyance by virtue of that credibility and this posture by my republican colleagues threatens to drag a vital nonpartisan institution into the morass of procedural gamesmanship and electoral mudslinging, the time of blame gaming and gamesmanship that has so disillusioned and dismayed americans more broadly. as i've discussed this process with the people of connecticut, i have heard outrage over this attempt to hamstring the supreme court which looks like the recent similarly illogical process of shutting down the government. if my republican colleagues want to reject a nominee, that's
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their right. after a hearing they can vote no. they may have reasons and those reasons may be subjective or fact based and objective. but to simply deny any consideration, even a meeting with a nominee is stark obstructionism. it is an extreme version of the phenomenon that has frozen this body for much too long. the majority campaign in 2014 on restoring law and getting things done, they promised americans everywhere that the new senate majority would usher in an end to gridlock on capitol hill.
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we've made some progress, too slow, too little but moving in the right direction will be forestalled if not doomed by this obstructionism and these promises would be broken if the senate refuses to act. at this critical time we cannot hold the highest level of an entire branch of government hostage because of political gamesmanship. that's not what the american people elected us to do. it's not what the american people deserve. and doing so would dishonor the bipartisan tradition of providing hearing and a vote for a supreme court nominee which is our constitutional obligation and has been followed by past senates. even when a nominee during
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president reagan's presidency was nominated 14 months before the election and even though the vote came during the last year of that president's term in office, justice kennedy was confirmed. and we should do the same. why not by memorial day? there is plenty of time between now and then to give deliberate due consideration to the president's nominee. i hope that the outrage and outcry from the american people will persuade my colleagues to reconsider and reflect and reverse this disastrous course. in fact, i believe that they will relent because this course
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is dangerous to the court, damaging to our nation, and ultimately destructive to our democracy. thank you, mr. president. and i yield the floor. a senator: mr. president? the presiding officer: the senator from rhode island. a senator: i ask unanimous consent to speak up to ten minutes. the presiding officer: without objection. a senator: we're here on this conflict over a supreme court nominee which has turned into a considerable unprecedenced fuss i believe for a fairly simple reason. the elephant so to speak in the room is that the court has become a political actor under chief justice roberts. mr. whitehouse: the right wing block on the court delivered politically because it had a 5-4 majority. now the right-wing majority is gone so republicans are predict bring upset -- predict bring upset. just as frankfurter admonished
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it, it is sthot the business of this court to pronounce policy. it must observe a fastidious regard for limitations on its own power and this preuseds the court giving -- precludes the court giving effect to its own notions of what is wise or politic. well, that was then. the five-judge block on the roberts court of which justice scalia was an essential part systematically and predict bring pronounced policy in favor of three things. one, conservative ideology, two, the welfare of big corporations, and three, the electoral well-being of the republican party. and people noticed. linda greenhouse wrote that it -- and i'll quote her -- "impossible to avoid the conclusion that the republican appointed majority is committed to harnessing the supreme court to and ideological agenda."
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other noted court watchers like norm warren seen and jeffrey tuben agree. the pattern of decisions and i'll quote him here -- "have served the interests and reflected the values of the contemporary republican party." columnist dana millbank observed other a recent decision the roberts court has found yet another way to stack the deck in favor of the rich. the court has become so political that justices scalia and thomas have attended the koch brothers secretive annual political conference. and just this week miss greenhouse wrote, "the conservative majority is permitting the court to become an agent of partisan warfare to an extent it threatens real damage to the institution." and it's not just the court watchers who have noticed.
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less than one-third of americans have confidence in the supreme court. americans massively oppose its citizens united decision 80% against with 71% strongly opposed. most tellingly by a ratio of 9-1, americans now believe the court treats corporations more favorably than individuals. even conservative republicans agree by a 4-1 margin that this court treats corporations more favorably than individuals. so let's take a look at the court's decisions in those three areas. election politics, corps interests -- corporate interests and the conservative social agenda. in election decisions courts appointed majority always seems to come down on the side that helps the election prospects of the republican party. the voting rights act, for
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example, protects minority access to the ballot. and in states that had long histories of discriminating against minority voters, it required preclearance of voting restrictions in the 5-4 shelby county decision, the republican appointed justices gutted that preclearance requirement. predict bring the result was almost immediate enactment across many states of voter suppression laws. "the washington post" described, for instance, the quote, surgical precision with which north carolina republicans approved certain forms of photo i.d.s for voting and excluded others. texas for another instance allowed gun permits for voting but not state university i.d.s. and even where these voter suppression laws ultimately fail in court, republicans still gain the benefit of fewer democrats in the electorate while they're
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litigated. the conservative judges decision on gerrymandererring are a second example. gerrymandererring is named after massachusetts governor in his efforts to shake the district of a state senator he needed to protect. well, a clever modern variant of gerrymandererring has emerged. bulk gerrymandererring which looks at the whole congressional district, the whole congressional delegation of a state. this tactic isolated democrats into small super saturated democratic districts so that majority republican districts can be created out of the remainder of the state. by manipulating the districts this way through its so-called red map project, republicans delivered congressional delegations that didn't reflect the state's popular vote over and over. for instance, when pennsylvania voters went to the polls in 2012, democratic votes for
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congress outnumbered republican votes by a little over 80,000. pennsylvania also reelected president obama that year and our colleague democratic senator bob kasich. but pennsylvania at that ballot sent a house delegate to congress of five democrats and 13 republicans. more votes for democrats, more republicans in the delegation by 13-5. this was not just a pennsylvania fluke. ohio in 2012 voted for barack obama for president. in return our democratic colleague brown to the senate but sent 12 republicans to congress and only four democrats. wisconsin voted for obama in 2012 and elected progressive senator tammy baldwin to the senate but sent five republicans and only three democrats to congress. the republican organization behind red map bragged of this
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achievement. i'm quote their memo. aggravated numbers show voters pulled the lever for republicans only 49% of the time in congressional races. but republicans enjoy a 33-seat margin in the u.s. house seated yesterday in the 113th congress. having endured democratic successes atop the ticket and over one million more votes cast for democratic house candidates than republicans. this gerrymandererring ran wild because in a supreme court case, four republican justices announced that they would no longer question whether gerrymandererring interfered with any constitutional voting rights. one, justice kennedy, left a glimmer of light, but the practical effect was to announce open season for gerrymandererring. as the american bar association's publication on redistricting as noted and i'll
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quote it -- "the court's recent legislations appear to give leeway to preserve partisan advantage as zell lossly as they like when drawing district lines and in practice that gerrymandererring of congress squarely benefited republicans. a third example is campaign finance decisions. the most noticeable being citizens united. but a constellation of decisions surrounds citizens united begin with just powell's 1978 opinion in first national bank of boston v bellotti. the careful work of republican appointees on the court over many years to open american politics to corporate spending has conferred obvious political advantage to the republican party and as many news outrhetts reported, -- outrhetts reported it was the republicans who cheered the citizens united decision. so in elections, it's 3-3 in favor of the republican party.
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turning from elections to the conservative agenda on social issues like religion and abortion and gun control. let's start with the district of columbia vs. heller decision. a second amendment decision in which this same five-man block created for the first time in our history an individual right to keep firearms for self-defense. this doctrine as recently as 1991 was such a fringe theory that it was publicly described by retired chief justice warren burger as -- and i'll quote -- "one of the greatest pieces of fraud -- i repeat the word fraud -- on the american public by special interest groups that i have ever seen in my lifetime" -- end quote. that was the theory that the court adopted. the five of them. as one author noted, five justices on the supreme court were able to reinterpret by some standards radically the second
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amendment's right to keep and bare arms as a personal, not a collective right in heller. and at the wall separating church and state, the block of five chipped steadily away. christian crosses in public parks, federal tax credits funding religious schools, christian prayer at legislative meetings. as constitutional scholar irswin shellinski summed it up, rather than owe brit rating the wall separating church and state all at once, the roberts court's opinions are dismantling it brick by brick. four decades ago roe v. wade recognize add wall of privacy 234 thinthe constitution betweee gunfight and a woman's private medical decisions. the court has long required state laws barrin barring barrim abortions.
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the roberts' court upheld the ban on the proper that had no exception for health of the mother. as justice ginsburg stated in her dissent, the act and the court's defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this court and with increasing comprehension of its centrality to women's lives. and if the conservative win rate in the court is striking, the court one is even more soavment a recent study found a roberts' court more favorable to business interests than its predecessors with owl five members of the recent right-wing block among the top 10 most business-friendly judges in the last 65 years, with chief justice roberts number one, and justice alito number two. studies showed the roberts court following the legal position of the united states chamber of
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commerce, which is a de facto organ of the national republican party, 69% of the time -- 69%. up from 56% during the rehnquist court and 43% during the burger court. connect the dot oz. the republicans are the party of the corporations. the judges are the appointees of the republicans. and the judges are delivering for the corporations. it is being done in plain view. many chamber victories were significant, making employment discrimination harder to prove, letting manufacturers and distributors fix minimum prices for retail goods, letting mutual funds advisors include misstatements made by others in the documents they prepare for investors, and even hobby lobby, where the court put the religious rights of corporate entities over the rights of employees.
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big corporations hate being hauled into court and having to face juries, and the five republican appointees protected them, raising pleading standards for victims, letting companies push disputes into corporate corporate-favored arbitration, restricting americans' ability to press cases of large-scale wrongdoing in class actions, making it more difficult for workers to hold employers accountable for workplace harassment, and making it harder for consumers with serious side effects to sue the drug companies. right now before the court is the case the five-man block had pursued for sometime, and it was expected that the five would use it to deal a significant blow to the political and economic clout of unions, a great boon for the big corporations. and it also looked like the five were teaming up for the fossil fuel industry a big victory
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against the president's clean power plan. so there was a lot at stake in that fifth vote. there was a lot that was delivered because of that fifth vote. at 4-4, the circuit court decision below stands. at 4-4, the challenged regulation ordinarily prevails. you'll close with the big sock, citizens united. it was once the opinion of the united states supreme court that -- and i will quote the court -- "to subject the state governments to the combined capital of wealthy corporations would produce universal corruption." end quote. no more. the five judges behind citizens united opened the floodgates for unlimited anonymous corporate spending in elections. they found that corporate corruption of elections was near
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impossible, and they caused a tsunami of slime, to use a phrase that i borrow, that we have seen in recent election cycles. such a brute role for big corporations in our american government would shock the founding fathers, who foresaw no important role in our republic for the corporations of the time. to unleash that corporate power in our elections, the five conservative justices had to go through some remarkable contortions. they had to reverse previous decisions where the court had said the opposite, they had to make up facts that were then predictablably and are now demonstrably wrong, they had to croat a make-believe world of independence and transparency in election spending that present experience belies, and they had to maneuver their own judicial
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procedures to forestall a factual record belying the facts they were making up. it was a dirty business with a lot of signs of intent. and it has produced evil results that we live with every day. and all of this -- all of this -- republican election advantage, corporate welfare, the conservative social agenda -- all because the activists, corporatists, right-wing block had a fifth vote. that block of five did more for the far right, for the republican party, and for its corporate backers than all the republicans in the house and senate have been able to do.
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they delivered. and now it's 4-4. that advantage is gone. hence, the panic on the republican side. hence the departure from plain constitutional text. imagine any other constitutional duty of the president that he failed to do that would not cause uproar and outrage. there would be nobody on the floor here because everybody would run off to fox news to get their talkingheadshot in about what the terrible thing the president had done violating his constitutional duty. well, the president has a constitutional duty: i shall nominate. -- he muc shall nominate. so they are in a political pickle. but the constitution, the constitution doesn't care about the politics. from the constitution's point of view, the politics are just too
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darn bad. the constitution directs the president to make the appointment, and she do his job -- and he should do his job. the constitution gives the senate the job of advice and consent to the president's nominee. we should do our job, just as the constitution provides. mr. president, i yield the floor and note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:
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quorum call:


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