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tv   Senate Democratic Steering Committee Forum on Supreme Court Nomination...  CSPAN  February 25, 2016 5:26am-6:40am EST

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well, i think the words are pretty clear. i think what he might have said is that these are no longer my views on the subject because, of course, he would like president obama to be able to make that nomination. so i want to reject this myth that many of our democratic colleagues are spreading that what we are doing here and now is somehow unprecedented. quite the clear, what we are doing is what the democrats' top leadership has advocated in the past. what do they think we are? they think we're going to abide by a different set of rules than they themselves advocated? how ridiculous would that be? i could not explain that to my constituents back home in texas. if i was going to say well, the democrats can apply one set of rules but then when republicans
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are in the majority, republicans must apply a different set of rules. well, the fact of the matter is the rule book has been burned by the democrats. what we're operating under is the status quo that they advocated back in 1992, 2005 and 2007. so, mr. president, the senate has every right under the constitution not to have a hearing, and we shouldn't go through some motions presending like we are or that this is really about the personality of whoever the president nominates. i have confidence the president will nominate somebody who he thinks is qualified to be on the supreme court. i would point out, though, that this nominee will not be confirmed, and i don't know many leading lawyers, scholars and
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judges who would want to be nominated for the united states supreme court to a seat that president obama will never fill. so during this already very heated election year -- and the election is already under way. democrats are voting in democratic primaries. republicans are voting in republican primaries and caucuses. the election is already under way. and the supreme court can function in the vast majority of cases with eight members, and it frequently does anyway, because most cases are not decided 5-4. most cases are decided on a consensus basis. but let's say for the six or so cases in which justice scalia was a deciding vote in a 5-4 case last year, well, if there is a deadlock, those cases can simply be held over until the next year when there is a new
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justice. or the court can come up with some other way to dispose of it as it sees fit. it frequently happens, for example, when justice kagan was solicitor general of the united states and was recused from and could not sit on cases that she handled as a representative for the u.s. government once she got to the supreme court. so the court operated with eight justices for a long time because of justice kagan's recusal. similarly, when justice anthony kennedy served on the ninth circuit court of appeals, once he got to the supreme court of the united states, he couldn't then sit on those cases and decide them once as a circuit court judge and another time as a supreme court judge. he refused. which means that there were eight justices to decide those cases. this is not extraordinary. this is not uncommon. and it is not going to paralyze the supreme court of the united states from doing its job. it hs
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it needs at its disposal to handle these cases as it sees fit, either to dismiss them, to hold them over if they truly are deadlocked, or to find some other perhaps more narrow basis upon which to decide the case which would command a five-vote majority with eight members of the court. so, mr. president, i'd like our colleagues to come out here and explain this apparent contradiction and their position that they took in 2007, 2005, and 1992. because if they can't explain that, then it looks to me like this is pure hypocrisy. holding republicans when we're in the majority to a different standard than they themselves were willing to embrace when
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they were in power. like i said, people may not understand a lot of the knitty knitty -- details of this but they have a strong sense of fairness and they do smellnator. ms. heitkamp: i ask that the quorum call be vindicated. the presiding officer: without objection. ms. heitkamp: i come to the floor today with a pretty simple message, a message that the people have been delivering to me and the people of north dakota, which is that congress needs to do its job. whether it's legislating on wotus, making sure we move legislation properly, taking votes that maybe make some of us uncomfortable here. that's our job. that's why the american taxpayers pay us. i'm coming here today saying congress do your job. senate, do your job. every day families across this country go to work and fulfill
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their responsibilities and obligations. they do their job. they put food on the table for their families, and they pay their bills. imagine a construction worker in north dakota telling his boss that he doesn't want to do his job for the rest of the year until conditions are probably more favorable. he might get a good laugh. he might be told to go back to work. and if he was serious, he wouldn't have a job very long. everyone here knows that american workers can't go to their jobs and just announce, "i don't want to do that today. " say, "i'm not going to do my job today for the rest of the year. i'm going to wait to find out who might be the new boss." it's not how it works for the american people and it's certainly not how it should work for the united states senate. i think in many ways it's an embarrassment in a some of my colleagues would not only ask the president not to do his job, a job that our constitution instructs him to do, but they would also shirk their own duties to provide advice and consent to the president simply because it is not a good
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political time to do it. it says something, i think, pretty terrible about congress if the senate now is making determinations about how a popularly elected president, regardless of political party, regardless of whether that president is popular in this chamber or not, is no longer allowed to perform the duties of that office and nominate and receive a vote on the supreme court nominee of his choosing. it's a disappointing day when some senators will tell the president, don't even bother because we will not even consider or even talk to your nominee. this is before the president has even announced or named a nominee. and it's particularly frustrating to those of us who really want the senate to work, that some senators are willing to hamper the functioning of yet another bernanke -- another branch of our federal government simply to play politics with the
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hope that those politics will benefit one party to maintain and possibly take control of the other two branches of government. i don't think anyone can dispute the facts. the supreme court considered some of the most critical issues facing our country and the american people deserve a fully functioning court. to insist that the court go through potentially two terms without a full slate of justices is an abdication of our responsibility as united states senators. that responsibility is to make sure that america has a fully functioning three branches of government. and now just yesterday we hear that my colleagues are not even going to entertain the thought of a hearing before the judiciary committee for any nominee that the president puts forward. i don't know how you can explain that decision. i don't know how you can say for the next ten months it doesn't matter. i don't know how to explain that to people back in north dakota. and so in the last 100 years the
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full senate has taken action on every pending supreme court nominee to fill a vacancy l regardless of whether the nomination was made in a presidential election year. according to c.r.s., congressional research service, since 1975 the average number of days from nomination to final senate confirmation is 67 days or just over two months. since committee hearings began in 1916, every pending supreme court nominee has received a hearing except nine nominees who were all confirmed within 11 days. in addition to holding hearings on the nomination, the senate judiciary committee has a long-standing bipartisan tradition of sending to the full senate all pending nominees to the supreme court for a supreme court vacancy, even when the majority of the committee may not have supported that nominee. in this supreme court, if in fact this supreme court vacancy
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is held open until the next president makes the nomination, that will mean it is vacant for well over a year. not since the civil war -- not since the civil war has the senate taken longer it than a year to fill a supreme court vacancy. an extended period of time with only eight members of the supreme court sitting would delay or prevent justice from being served. there are american citizens across the country who need decisions from the court on various variety of issues. in fact, what we have done is we have elevated the circuit courts who have made the decisions that are currently pending, we have elevated the circuit courts to really the position of the supreme court of the united states. denying, denying access to those claimants one way or the other, whether the court agreed with them or the court disagreed with them in the circuit courts, denying them access to that
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final appeal, denying them access to that supreme court decision. so i just simply want to say let's do our job. let's give the nominee a hearing. let's vote in the committee. let's all do our job to vet the candidates. let's not prejudge this. let's do the responsible thing. let's vote "yes" or "no." let's take a look at the candidate that is going to be nominated and let's get a fully functioning supreme court. i want to close with just one reminder. the last time we went through a very contentious hearing was the hearing for justice thomas, and i think my colleague from washington who is on the floor well remembers that, as do a lot of people here remember that. i want to just remark that justice thomas was sent to this floor without a positive vote out of committee, but sent to the floor. and justice thomas' nomination, at the urging of then-majority
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leader mitchell, was not filibustered. that probably the most contentious nominee in my lifetime certainly, and certainly, you know, raised some very interesting gender issues, did not even get filibustered. let's do our job. let's do the work that the people sent us here to do. let's vet this candidate, whoever it might be. and let's move forward so that every person who has a case pending before the supreme court, or will have a case pending before the supreme court is given access to justice by providing a fully functioning supreme court. they heard from legal scholars who discussed the senate's
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constitutional role in confirming members of the supreme court. this is just over an hour. as one of the three pillars of our government we vali the court's distiveragetive. the justice's commitment themselves to the law and to the constitution. and we're here to talk about today is what that constitution says. i figure you can help us with
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that. and it's pretty plain language as well as what history has shown us in terms of how these open vacancies have been our ed in the past skfment pray rers with the family of ustice scalia. the constitution is clear where it says that tment shall nominate and it says that the senate role is to advise and consent. when you look throughout history you have to go back to the civil war to a time when a for over as left open
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a year. a time before we had cars, planes and washing machines. we also look at the current justices on the court and the fact that since 1975 there actually the average time from the time the person is nominated we've been joined by a law professor herself senator warren we won't call her professor warren today. as well as senator carden. you have to go back to these nominees to 1975 it takes an average of 67 days to get this done. yet some of our colleagues on the other side of the aisle are talking about holding this up for well over a year for two terms of the court and we believe this is unprecedented and is against the clear words of the constitution. so with that, we're going to -- i know we are going to be joined by some of my colleagues but since you are here, senator warren or senator carden if you want to say a few words.
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we'll em of government
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hear from some of our witnesses and get to our questions. >> i thank senator blumenthal. i'm hoping lit wear off. >> exactly. >> you mean on them. >> exactly. >> but there shouldn't be a republican and democratic side on this. i want to thank you for pulling
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this together as senator carden says it is very unusual for us to be doing something like this but it is powerfuly important. and we will be in and out. senator mcconnell was right when he said that the american people should have a voice in the selection of the next supreme court justice. in fact, they did. . en president obama won i cannot find the clause that says except when there's a year left in the term of a democratic president. make no mistake, the republican senate's approach to this vacancy is completely unprecedented. the senate has been holding hearings since 1916 on supreme
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court justices, and i just want to go over the numbers. nine justices were confirmed within 11 days. no hearing at all. nine justices. one justice withdrew before a hearing. and all others, every single supreme court nominee, sent up by the president, every single one received a hearing in the united states senate. over the past 100 years, every single pending nominee to a vacancy on the supreme court, every single one, has received a vote on the floor of the united states senate the senate. now, for the rest of this year president obama is still president of the united states of america. can i have an amen on that? if some senators don't like the person that president obama nominates, then they can make their case to the american
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people and vote no. but it would be irresponsible for senate republicans to preemptively paralyze the nomination process that is laid out in the constitution. senate republicans took an over oath just like senate democrats did abandon, the dutesies they swore to uphold would threaten both the constitution and democrat itself. it would also prove that all this republican talk about loving the constitution is just that. talk. and nothing more. the president is currently reviewing candidates and making a decision about who to nominate. he is doing his job. and once he nominates someone the senate should do its job. the same job it has been doing for over a century. because that is what the american people sent us here to do.
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>> thank you so much. we're going to hear first from professor stone who i took four classes from. correct? hinge we had land to hear from senator schumer and senator durbin. >> thanks for inviting me here nfment a rekent piece in the "washington post" the only rule that now governs the confirmation process is the law of the jungle. there are no rules. this is profoundly misleading and dangerous. if taken seriously and acted upon this misconseppings would undermine 225 years of well settled decision and throw it into a state of partisan chaos
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that would damage both the rule of law and the supreme court. when we take a deep breath and examine the performance it's clear that the senate defers to the president in these matters as long as the president puts forth nominee whose are clearly qualified and who are reasonably moderate in their views. this has been the outcome in the last 06 years and the last i can discern in american history moreover this is true even when the senate is controlled by top posing party, even when likely to have a significant impact on the balance of the court. when all is said and done nominee whose are bodes qualified and moderate are confirmed. so what then are the rules or traditions that govern supreme court confirmation? at the outset it's worth noting that from 1790 to the president, 91 mrts of the supreme court nominees. and in the last 60 years the
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senate has confirmed 9%. so despite all the hand gsh 89%. there has been no appreciable change over time. of course not every member of the senate votes to confirm every nominee. so why do senators sometimes vote against confirmation? one factor is partisanship. senators are more likely to vote to confirm nominations than nominations made by a president of the opposing party. but it is important to note that in the last 60 years members of the senate who voted 60% of the time to confirm nominations and even when the opposing party controls the senate the senate has voted to confirm 80%. senators also take a nominee's qualifications into account. in the last 60 years nominees who were perceived as highly qualified received an average of the 97% of the votes. whereas nominees considered less qualified received an
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average of 61%. senators also take a nominee's judicial philosophy into account. mod va rat views received an average of 9696% of the votes whereas nominees having strongly views receive an average of 77% of the votes. so what does this tell us? first and foremost in the last 60 years 19 of the 20 most moderate have been confirmed by the senate. this includes everyone from sonya sotamayor and samuel alito. even more impressive, even when the senate was controlled by the opposing party every one of the eight nominees who was perceived to be both qualified and moderate was easily confirmed.
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you might note that every one was nominated by republican president and confirmed by a senate controlled by the democrats. so despite all the fuss and fury over the supreme court confirmation process the plain and simple fact is the senate always defers to the president as long as the president puts forth nominee whose are qualified and reasonably moderate in their views. this approach has major benefits to the nation. it reduces potential fractions within the senate. it reduce it is risk of politicizing the judiciary and averages out over time. in short this is a sensible pragmatic approach that has served our nation well. although republican's desire to obstruct is understandable, it would set a disastrous precedent for the future. if the president nominates a
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highly qualified senate republicans should do their job and they should confirm that nominee. let me offer a closing thought. the republican mex of the senate judiciary committee announced yesterday that they will not consider any nominee put forth by our nation's president. no matter how qualified and no matter how moderate the candidate might be. this is unconscionable. if they carry through on this threat it will be directly imcompatible under their duties. it would be morley and legally on the par with the southern manifesto. if the senate republicans follow through then this day forward estrada and witice will be right. the process will be lawless. it will indeed be the law of the jungle. that is the legacy they will surely come to regret. thank you. > thank you very much. professor, from university of north carolina. thank you for joining us. >> thank you very much,
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senator. thank you all for the opportunity to be here. it is always a great privilege for somebody who teaches about the constitution and the legislative process to be able to talk to you about the united states constitution. it is a special honor to appear here today along with my teacher and mentor the former dean of my law school and my friend, jeffery stone. you have my written statement which i hope speaks for itself. i will limit myself to three observations. to begin with it is not a hard question to determine how and nder what conditions the constitution nominate and the senate to give its advice and consent on nomination tots supreme court. the constitution and the duties to nominate and consider supreme court nominations remain filly in effect at all times. the constitution provides no exception, does not provide for its suspension depending on the
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time. the president and the senate each retain its respective
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involving supreme court three of which involved chief justice nominations. today is the anniversary of mar ri versus madison. perhaps the most important thing to remember about historical practices is they do not bind this institution. they do not rob you of your discretion or authority. they are not part of your oath. they are merely suggestions of how to use your power. they do not direct or mandate how you should use your power. what then should guy you? my own belief is that you should consider what kind of precedent you are establishing. the choice to shut down the senate nomination process or the supreme court appointment
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process as well for nearly a year is not ground in some grand principle. without any tradition to support such a decision we know what guides us. raw partisanship. the coursest possible basis for a governmental action. we are told that the senate will leave to the next election. but what about our past several elections? do they not still have sneesket didn't they give us a president and presumably working senate? are those elections now null and void? the answer is obvious. we do not expect those leaders to stop governing simply because it is an election year. allow me to put my last point differently. for more than 25 years i have studied the constitution and particularly the senate. i have had the honor to finish the most recent edition which i coedid t with the justices. what is the lesson not to
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govern will teach my students? what should they take away from all this? they will find no grand or noble principle at wrk here for there is none. the constitution does not cease to take effect during civil war or world war. it was not suspended during our great depression. through all those times supreme court decisions have been made. the constitution recognizes no off season, no time outs, no suspension for any reason. if our leaders could lead, and they did, during more turbulent time than these, they can rise to the occasion now. the senate's job is and always has bleen to govern. >> thank you very much. we've been joined by senator menendez of new jersey, senator hirno, and senator schatz of hawaii as well. thank you. senator shirme before he had to
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leave was going to say a few words. ok. he is defering to you. you teach in new york. so jamal green we welcome you. he is the vice dean for intellectual life and for columbia law school. thank you so much. >> let me know if you need me to step in. thank you for the inviteation. i want to make three general points. but first about the lack of historical precedent for the senate's refusing to consider a nominee for a supreme court vacancy. about the consequence of an action. and third, about the nature of the senate's constitutional duty to hold hearings to fill a vacancy on the supreme court. in brief, the senate's outright refusal to consider a nominee is unprecedented in the modern
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history of this country and threatens to create historic levels of legal uncertainty. first, the historical precedent. in the last 135 years dating back to 1881, no president has been refused to vote for an open seat on the court. over that time span seven have been noment nated and confirmed. and one was even nominated and confirmed in the period between the elections and inauguration. you've heard a lot of talk about the failed 1968 nomination. but two points there mentioned. first unlike the wation we have now there was no vacancy on the court at the time. chief justice warren's resignation was not to be made effective until his successor was qualified. second, the senate did hold seven days of hearings and it was debated before the summer of the election.
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that is not a failure even to hold a hearing or vacancy that arises nine months before the election. in we see the additional pattern and, in cases involving vacancy, the senate never refused to act on the nominee. john quincy adams, tyler, johnson, and rutherford b. hayes, none of them were elected. the people have spoken and the second point is about the consequences of inaction and bringing uniformity to federal law, leaving the eight person court to undermine that function.
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and there is an eight member court. it does not set a precedent for the rest of the country. it may affect the decision and leave conflicts in the lower court that are unresolved. this is based on the length of recent confirmation hearings. he or she would not hear the first cases until 2017 after scalia's death. the final point is that the senate has a constitutional duty and the duty is to exercise power.
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the preamble tells us that a purpose is to establish justice and vacancy undermines that. the constitution -- whatever one thinks of leaving executive appointments vacant, this is treated differently and, we established conventions. scalia said that it has been unchallenged since the days of the republic and it should guide the way. in light of the decision to give consideration to fill the vacancy, the responsibility here is clear. thank you. >> thank you very much. we have been joined by the
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senator. >> i am glad to be here. >> you are a distinguished professor would georgetown and had the least amount of distance. >> i traveled the furthest. >> we see the senate and you are doing this this afternoon. i want to talk about the unprecedented developments in the structural framework. this event, basically, the party is undermining the structure of the democracy and the proper functioning of power is damaged
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in a two-dimensional way and it is caused by disrespect for democracy and a negativity towards legislation. this has been going on since obama's inauguration and it has contributed to public discussed over the functioning of the government. we have a breakdown in the separations of power and it is a structural and constitutional problem, in a structural sense. this is one of the most important responsibilities the branches had in the structure and for a major party to thumb this is to strike a blow at the heart of checks and balances that are a sick to the constitutional framework.
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suppose the state refused a structure of public education or a police department, it is fundamental to the democracy and it is probably not what the supreme court would take on. we would view this as the affirmative duty in the constitutional framework and the affirmative obligation is explicit with the is spot -- the responsibility to advise and consent in the constitution. there are no exceptions for election years. a seat that is a subject is the core of the constitutional framework and it is the peak of the importance to the functioning of the democracy
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with a basic duty carried out without any question and there have been 24 instances in which a president has nominated a justice in the last year of the term and it has been an understanding of both parties throughout our history that the republican party is on a path to violate the agreement and we have been watching a serious undermining of democratic institutions and it is on the way to happening again with a violation of separations of powers, if they continue to refuse to take a tiny step towards carrying out constitutionally required
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responsibilities with advise and consent. this is a constructive event for the nation and a debate about the role and the direction of the role of the court and the meaning of the constitution that should be undertaken in a manner of dignity and respect with the reaction of the republican party up to now taking us in the opposite direction. thank you. >> thank you very much. >> i would like to ask a few questions. >> thank you very much for your testimony. you are all scholars who have studied the court. have you ever come across a time in the national history as damaging to the future of the court and the balance of power, as it relates to the supreme
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court? >> i would say not. there were serious issues and i think that this is more defiant of the constitution. >> anyone else? >> we have had some unfortunate moments in our history and it is hard to say. >> this tells you something about the territory we are in and we are looking at low movements that occurred in previous history and i think that the deliberate choice to not do something is unprecedented and is remarkable and, when things have gotten bad, there have been no other times when people voluntarily abandoned being represented in congress.
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that was the civil war and this is not the civil war. even then, the constitution remained in effect. >> the only thing i would add is that a thing that is worrisome about this is a precedent that is set and this is crossing a line that will be hard to walk back in the future. obviously, politics plays a role with any nomination to the court and people say things that they may not have said and this is really something that is hard to backtrack on and, if you say one year is not enough time, why not just say you do not agree with the responsibility and this crosses a line.
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>> i imagine it would go down to a circuit court easily. >> i would add that there is a different context with everything said, the context of the behavior of the republicans and this is hitting a new low. >> let me ask you a question right now with the republicans. if they get their way, which i don't think will happen because there will be enough pressure. the average americans do not like this and they want them to do the job, not being as erudite as your statements, but right to the point. i think they will have to back
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off, as they have with other issues, where the hard right controls them. tell us a little bit about the gridlock that could result with the supreme court and the lower courts and how that affects all the issues the supreme court's have and that is my last question. >> i think green did a good job talking about that and i do not want to preempt him. i certainly think it produces circumstances in which the court becomes paralyzed and incapable of providing the leadership. >> go ahead. >> in this term, there are cases involving religious freedom, free speech, voting rights,
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executive power, abortion-rights, labor rights, and cases that do not get media attention with the court having dockets and cases with a division of authority in the lower courts and the uncertainty means a lot a difference. unlike the lower courts, the core function is to rely on those divisions. what is hanging over the court means they cannot do their job. not having a single judge in a lower court would be different. >> would this have an effect on jobs and growth with companies and economic interests that hole up and do not do the kinds of
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things to move forward, and terms of moving forward to create jobs with lots of issues that various companies and groups are interested in that we have not even heard about. -- heard about? >> it is hard to make a a speculation on how to move the business. >> it is possible this could hurt with job creation? >> certainly. >> we have been joined by murphy from connecticut and the senator from michigan. i would like to ask questions here and move on to senator franken and stay in order. this is a question about shall. the constitution says the president shall nominate and the
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senate shall appoint. when you see the word in other parts of the constitution, it is pretty clear and the 20th amendment says that the term will end at noon on the 20th day of january. these are just examples. could you comment about whether or not you think the language is clear? this is a softball question. to me, it seems clear. you guys are the experts. >> speaking to that, yes, that is my answer. i would go on to say that you have to -- as an underlining, as an exclamation point, this
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example of advising is the most paramount, the absolute zen is of the application and it is not only a duty. it is in relation to the fundamental structure you heard and we all know about the implications of the states and the precedent for the future and the emphatic yes to your question is that the duty could not be more important in this instance. >> i have no doubt that scalia, a textual list, if he was asked a question and it was behind a
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screen, i am 100% certain that he would say that shall means shall and would be right. >> i think it takes on greater importance over time and the country has increasing importance and they want the fully functional supreme court. >> this question on the issue of death penalty cases that come before the court. what will happen to those? oh >> there is a thing that happens and, as was said here, it turns out that, whatever way it ends up, either the court can come to the decision and be
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divided or it will be leading the country, if you have different decisions and you have different laws in different parts of the country. >> that is some of the appeal. >> yes. whatever the decision is on the differences of opinions, it leaves a conflict in place and does not resolve it and that is certainly one of the results of it.
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there is a result if the court is deadlocked. the lower court stays the law. in terms of the question the senator asked, there will be a lot of times when people who are major stakeholders in the economy and in the public sector want a final decision. >> senator franken. al franken: i agree with the professor and others who are saying this. it presents a dangerous precedent and what happens next time? is it 11 months? 12 months? 13 months? it, obviously, there is nothing in the constitution that says anything other than it is the president's job and our job is to advise and consent. it seems clear-cut and the president will be president for almost 11 more months and it
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seems arbitrary, almost anything does, other than what is in the constitution. it is ironic, obviously. our hearts go out to scalia's family and i may not have agreed with him on a lot of stuff. i thought he was very funny, i don't know if that means anything. and he was devoted to the constitution. and, he was devoted to the actual text and it seems clear here. if a majority leader wants to change the constitution to say the president cannot nominate a supreme court justice in 11 months or a year or 11 months.
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he would have to get both houses and 3/5 of the states. could he do that now? he could try. would that be constitutional? that would be constitutional. >> he has that. >> i want everyone to understand that he has a constitutional way to approach this and i would suggest that he try it. >> that would be a way to do it. the fact is that the constitution does not give the senate the opportunity to not govern. which is to say, "we are not
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doing our job." >> i'm not saying that. >> if it got amended that way, we would follow that. >> senators, in the sixth year of their terms should probably not be chairman of committees and allowed to vote on supreme court nominations. that seems more consistent with what the majority leader is saying, rather than a lot of what he is saying. >> i would say that that would be a level of minutia that constitutional amendments do not typically address. if properly done, that would be constitutional law. >> thank you. >> thank you very much senator franken. >> senator blumenthal is a
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former attorney general. >> thank you. thank you to the senator for convening this gathering and to each of you for being here. i am very happy that we are asking the questions and we are not subject to a socratic method and i i want to thank each of you for public service in various capacities and i ask a question that i think reflects the work of the courts that is
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often unappreciated because the court, and almost all cases, is making decisions about what cases to take and not just how it decides. what cases they take, if the laws of the same, it requires for votes. the eight member court also can change the agenda of the court by refusing to take cases where there are conflicts in the circuit, let alone putting aside decisions that may be gridlocked and the very agenda and the docket of the court would be changed with one or more of you may be speaking to the issue. >> as it stands with the court, you have those who want to not hear a case and that is not enough because of the rule of four. with the court of age, five members -- with a court of eight, five members would block.
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you have some of not being taken at all it it doubles down on the legal uncertainty with this refusal. >> the other important task is providing certainty and resolution going to the schumer point of lack of certainty in peden -- certainty impedeing. and that is why i think the founders created a court and i think that we are seeing the kinds of threats that gridlock in the court that people find
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abhorrent in washington, d.c. these days and what is being done you can do my's is the part of sin morass that people have come to the test and drag the court into which and damage the court. at the end of the day, as we all know, the court has no army or police force and it depends on credibility. some say it is a mystique.
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the people of the united states see the court as a bunch of politicians and it will diminish and ultimately be damaged. so, thank you. >> the senator on the judiciary committee for a number of years, now on the intelligence committee. we hope she comes back. >> thank you for all of you being here and you made it clear that shall means shall, in terms of responsibilities of the senate and i was trying to think of an outrageous analogy. if the senate told the state that they could not fill the vacancy for over a year, that would raise a huge outcry in that state and others.
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i wonder if the republicans are violating the constitution. if they do not change their minds, if they stick with their positions, are they violating the constitution? they are, if they behave the way they said they will. they have a responsibility. i think they have a fundamental responsibility based on the text and on our years of tradition, to honestly consider and debate and judge whether the president's nominee is a person qualified to be on the supreme court. >> so do you agree that if the republicans do not change the position, they would be violating the constitution? >> i do, senator. that was essentially the argument of my earlier remarks. >> so what is the remedy, when a body violates the constitution? >> guantanamo. [laughter]
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>> no, really. this is a serious question. >> i know. >> what can we do? can a whole body be impeached? and the leader of the body be impeached? what is the remedy? >> i think our amity in the united states, in that particular situation, is you face your voters. let me just add -- >> that is a strange remedy for a violation of the constitution. >> in this context,, there are things we think violate the constitution that you cannot take to court. professor edelman: a former colleague wrote a terrific book about the second bill of rights, based on president roosevelt's last inaugural address in 1944. the whole book is about things of constitutional stature, if you will, that are not enforceable in any way.
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so sometimes, now, there are ways in which, as you know better than i, what the body has the power to do to eject a member. and there has been litigation filed against mccormick on that. but that is a different kind of violation. so, the point is, and i think it is the point of our conversation here today, which is to say to the american people that what's going on here, the lack of historical precedent, all the rest of it -- but on top of that, it's a question for the public to understand. they have a constitutional duty which they are violating. >> yes. so, do you all agree that there is no constitutional remedy? >> there is a judicial remedy. >> there is no judicial remedy. >> it is important to say, the
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fact that some but he has the raw political power to do something does not mean it is consistent with their duty. if you draw an analogy let's say the house where to be working on an appropriations bill and the senate were to say, no matter the content of the bill, we will not consider the bill whatsoever. doesn't matter what it says. we would not say, they have made a decision to appropriate zero. we would say, they are not doing their job, not fulfilling their constitutional responsibility. that is the analogy i would draw. >> or we can think of a different analogy, since that is our job. say you create a court of nine seats, and there is a vacancy and the president chooses not to make a nomination. what is the remedy, then? would you say, your job is to enforce the law, to administer the law among many other things. you need to make a nomination. and he would say, i prefer to have a court of eight justices. i think that would be
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problematic, and i can imagine a senate, even a house saying, you just violated your oath because you are supposed to be enforcing the entire constitution, which means following the law and nominating somebody. >> that is the difference between the legislative and the president. it gets into a long conversation about what constitutes high crimes and misdemeanors. but at least there is a remedy, which is you could impeach, try to impeach. professor greene: by the way, there is a law that says there should be nine members of the supreme court. that is a federal law being potentially violated right now. >> thank you. >> thank you. senator merkel. senator merkel: i appreciate you all sharing your expertise. professor greene, it was in your written testimony that the supreme court is a major innovation of our constitution, as compared to what went before it.
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in that regard, it was specifically established so it would be independent of congress. in that context, then, it certainly was not anticipated that congress would be able to use advice and consent power to put this up in court out of action. i have gone -- the supreme court out of action. i have gone back and read the federalist paper on this topic. is there any sense at all that anyone envisioned that congress would, that the senate would use its advice and consent power to, if you will, undermine the ability of the court to function? >> the short answer to that question is probably no. but let me underscore the fact
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that what we are looking at here is unprecedented. even in the worst of times, the senate when it has been oppositional, gives people a hearing. actually, tries to consider the nomination. but this is the refusal to consider anything. the very extremity of this refusal distinguishes it. senator merkley: at the time the constitution was drafted, it was not exactly clear what advise and consent meant. we have over time developed a very clear and unanimously apply understanding -- applied understanding of what that means. every single nominee who is understood to be qualified and is perceived as being relatively moderate has been confirmed, period. no exceptions. what the senate has basically done is saying, if you nominate someone unqualified, or off the charts ideologically, we might not confirm them. but if you nominate somebody who is reasonably moderate and
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qualified, we will, period, confirm them. that has become the meaning. and it is a good meaning. professor greene: hamilton referred to the standard -- senator merkley: hamilton referred to the standard of unfit character. whether you are investing power in the executive or the assembly, as it was referred to. the conversation was, it made a lot more sense to give it to a single person, because you have more accountability, more judgment. however, should that individual go off track and start appointing people who were friends and families and favored individuals who were inappropriate because they did not have the experience, than the senate serves as a check on that. that is the standard that was discussed of an unfit character. and i don't see any kind of foundation, if you will, for us
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to exercise advice and consent other than in that context of an egregious nomination where an individual is either unfit by experience or by character. is there any other standard by which the senate could reasonably say it is exercising its responsibilities? professor gerhardt: i think that captures a quite well. though people who are extreme ideologically, in some technical sense, also fit within that description. that is exactly what the united states and has done for 225 years. that is the best approach to working out the balance between the president and the senate, which is there to serve as a check for irresponsible nominations. professor edelman: that does not include refusing to even consider the nomination. senator merkley: the keyword you used here is "individual." the role of the senate is to evaluate particular nominees, not to prevent the process from happening at all.
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you want see anything in the framers suggesting the senate can keep the progress -- process from happening. senator merkley: i see i am over my time here. [laughter] >> if you want to ask one more question, then we will go to senator casey? senator merkley: thank you for that courtesy, madam chair. specifically, we have a constitution crafted with this balance of powers between three branches. but if the senate uses its advice and consent responsibility to either undermine the executive by refusing to fill key positions or undermine the courts by refusing to hold a conversation and vote on court nominees, is and the senate deeply -- isn't the senate deeply abusing its advice and consent power, which was never designed to create an imbalance of powers in which the congressional branch has the ability to systematically undermine the other two?
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>> i said in my statement, senator, that we have had eight years of two-way failure of separation of powers. and this is the first time in history, as well as the first time by this group of people, to have a three-way destruction of separation of powers. professor greene: i might add one additional point. it is probably not that hard to imagine moments in the past when senate -- the senate has perhaps abused its power. but the critical reason is, if that actually did happen, if there were those abuses in the past, that would make the weakest possible president ever to follow. the point is, here the tradition is to give a hearing, not to simply decide you are going to take a holiday and not do anything. senator merkley: thank you. >> senator casey, last but not least. senator casey: thank you.
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i appreciate you calling this hearing. this is a distant wished panel. -- distinguished panel. my question might elicit a response that is already in your testimony, so if you are responding by way of reiteration, i apologize for that. but around here, it does help to repeat ourselves, you can help us do that. i am particularly stunned by this position republican senators have taken. this is my 10th year in the senate. i thought i had seen it all, until this. it is a stunning dereliction of duty. i don't know how else to say it. if it is not, you know, to tear any of ideology, it is the tyranny of raw politics. depending on what day it is, i
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am not sure if they are doing it purely for ideological reasons or purely for political reasons, for both. but it is too radical, and it is -- tyrannical, it is misguided, and it is bad for the country. it seems like the same thinking that resulted in a government shutdown in 2013. when most people thought we had come to the precipice and would not fall into the abyss -- and we did, because you had one party in the grip of an extreme group who said, let's shut the government down. that's what happened. this may not be a shutdown of the spring court, but it is certainly -- supreme court, but it is certainly a partial shutdown, or at least something that inhibits the court from doing what must. i guess one thing i am hung up on is, and you may have already addressed this both in questions and in testimony, the impact of four to four, and what


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