“The American people elected our Republican Senate majority in large part to check the overreach of President Obama” Hatch said this week. “Given how crucial the courts have proven in holding this administration accountable to the Constitution and the law, the Senate has every reason to approach lifetime appointments cautiously and deliberately, especially appointments to the highest court in the land. Put simply, the temporary absence of one of the nine justices on the Court is far from calamitous, but a hastily-made lifetime appointment could be.”
Hatch also addressed the strong historical precedent supporting his position.
“The Senate has never confirmed a nominee to a Supreme Court vacancy that opened up this late in a term-limited president’s time in office,” Hatch observed. “It is only the third vacancy in nearly a century to occur after the American people had already started voting in a presidential election, and in both the previous two instances – in 1956 and 1968 – the Senate did not confirm a nominee until the following year. The only time the Senate has ever confirmed a nominee to fill a Supreme Court vacancy created after voting began in a presidential election year was in 1916, and that vacancy arose only because the justice resigned his seat to run against the incumbent president.”
Mme. President, on Tuesday, I rose to honor the memory of the late Justice Antonin Scalia. With his passing, the nation lost one of its greatest Supreme Court justices ever to have served, and I lost a dear friend. Today, I rise to make the case that the next President should choose the nominee to replace Justice Antonin Scalia.
As we embark on this debate, our first task should be to situate properly the Senate’s role in seating members of the judiciary as well as the reasons for its role. In doing so, let me invoke an approach that Justice Scalia himself employed to make the same point.
In addressing audiences, the late Justice often asked what part of our Constitution was most important in protecting the liberties of the people. Invariably, audiences would provide answers such as protections for the freedom of speech, freedom of religion, the right to keep and bear arms, the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, and the like.
Justice Scalia – like the vast majority of Americans – agreed that these protections are obviously important. Nevertheless, he always made one crucial observation: Even the most repressive dictatorships – such as the Soviet Union and North Korea – typically have provisions akin to our Bill of Rights in their constitutions. Simply enshrining these basic rights in constitutional text does not ensure their protection.
Our nation’s Founders knew, in the sage words of James Madison in Federalist 47, that (t)he accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny. They bestowed upon us the blessing of a Constitution that creates a federal government of limited and enumerated powers, with those powers diffused and balanced between three co-equal branches.
The federal judiciary occupies a unique station in this constitutional architecture. In deciding cases and controversies, it is – in the seminal words of Marbury v. Madison – emphatically the province and duty of the judicial department to say what the law is. Unelected and armed with life tenure and salary protection, judges thereby have the power to hold the political branches to account.
This power is the source of much of the Constitution’s great brilliance in its ability to restrain transient political majorities from exceeding the authority granted to government by the sovereign people; however, it is also the source of one of the great potential pitfalls of our system of government, in which five lawyers can substitute their personal policy preferences for the legitimate judgments of the executive and legislative branches, thereby usurping the powers of the self-governing people.
This tension between the stark necessity for judicial independence to preserve limited government under the Constitution and the dangers of an unaccountable judiciary shirking its duty to say what the law is—and instead saying what it thinks the law should be – makes the judicial selection process vitally important. Hewing to a careful process envisioned by the Framers that vests the executive and legislature with critical but distinct roles is the means by which we can maintain the integrity of the judicial branch.
The Appointments Clause delineates these distinct roles for the President and the Senate in the appointment process. Article Two, Section Two provides that the the President shall nominate, and by and with the Advice and Consent of the Senate shall appoint . . . Judges of the Supreme Court, and all other Officers of the United States. By creating two separate roles in the confirmation process – the executive branch to nominate and the legislative branch to provide its advice and consent – the Framers were creating rival interests.
Alexander Hamilton cogently explained the various rationales for this particular allocation of appointment powers in Federalist 76. Following from the example of the Massachusetts Constitution, the Framers vested the responsibility for nominations in one officer, the president, to ensure accountability and impartiality in selecting nominees and to guard against the corruption, impropriety, or imprudence that characterized the appointment process in many of the states. By concentrating the power of nomination in one person, the Framers sought to create accountability, or in Hamilton’s words, a “livelier sense of duty and a more exact regard to reputation.”
That said, the Framers expressly rejected the notion of vesting an unchecked appointment power in the President alone. By requiring the President to submit his nominee for the Senate’s approval, the Founders sought to forestall any potential abuse of the nomination power. Hamilton argued that the requirement of advice and consent would serve as “an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”
Although the practice of the early Republic confirmed Washington’s interpretation that the Chief Executive enjoys plenary authority over nominations, history also shows that the Senate equally possesses the plenary authority to reject or confirm the nominee for any reason; nothing in the text of the Appointments Clause appears to limit the kind of considerations the Senate can take up. Like the President’s unfettered right to veto legislation, the Senate enjoys complete and final discretion in whether to approve or even consider a nomination.
Mme. President, my colleagues on the other side of the aisle have taken up the mantra that we must do our job with respect to the current vacancy. And so we must. But our job, despite what the Democrats are saying, is not to follow a particular path found nowhere in the Constitution. Rather, it is to determine the most appropriate way to fulfill our advice and consent role for this particular vacancy. The Senate would not be doing its job if we followed a process that is not appropriate for the situation before us today.
Indeed, withholding consent can be just as valid an exercise of our role as granting it, and deferring the confirmation process for a particular vacancy may be the most appropriate and responsible exercise of advice and consent. It all depends on the circumstances.
Mme. President, consider these precedents:
The Senate has never confirmed a nominee to a Supreme Court vacancy that opened up this late in a term-limited President’s time in office;
It is only the third vacancy in nearly a century to occur after the American people had already started voting in a presidential election, and in both the previous two instances—in 1956 and 1968—the Senate did not confirm a nominee until the following year;
It has been more than three-quarters of a century since a Supreme Court justice has been nominated and confirmed in a presidential election year;
And the only time the Senate has ever confirmed a nominee to fill a Supreme Court vacancy created after voting began in a presidential election year was in 1916, and that vacancy arose only because Justice Charles Evans Hughes resigned his seat on the Court to run against incumbent President Woodrow Wilson.
The cautiousness with which senators in times past have approached election-year vacancies are only amplified by present circumstances. As my colleagues in the minority are fond of saying, elections have consequences, and the election of 2014 has certainly had tremendous consequences. In the last election, the American people went to the polls to register their opposition to the wide range of illegal and unconstitutional actions of the Obama administration, including:
Its unilateral cancellation of duly-enacted law, such as with illegal immigration;
Its regulation contrary to the plain text of the law, such as with the Clean Power Plan;
Its willingness to ignore its statutory obligations without meaningful justification, such as with the President’s decision to release the top five Taliban leaders in U.S. custody without notifying Congress beforehand as required by federal law;
Its efforts to stretch what lawful authorities the executive branch does possess beyond all recognition, such as with its mass clemency effort for drug offenders;
And its attempt to bypass the Senate’s role in the confirmation process, one of nearly two dozen times that the Obama administration has lost 9-to-0 before the Supreme Court.
The American people elected our Republican Senate majority in large part to check the overreach of President Obama, and given how crucial the courts have proven in holding this administration accountable to the Constitution and the law, the Senate has every reason to approach lifetime appointments cautiously and deliberately, especially appointments to the highest court in the land.
Moreover, leaving Justice Scalia’s seat open until after the election would hardly result in a constitutional crisis. An absence of this length would be far from unprecedented, as the Court has adapted to vacancies that lasted for more than two years over its history, and as recently as 1970 accommodated a vacancy of more than a year thanks to liberal obstruction of two candidates nominated by a Republican president.Famously, when Justice Robert Jackson took a year-long leave of absence to serve as chief prosecutor at the Nuremburg war crimes tribunal, Justice Felix Frankfurter wrote to him and advised him that having a temporary eight-member Court as a result of his prolonged absence did not “sacrifice[e] a single interest of importance.”
Moreover, the recusal process oftentimes requires the Court to consider various cases—including recent high-profile cases, such as Arizona v. United States in 2012 and Fisher v. University of Texas in 2013—with a reduced number of justices. An even number of justices never inhibits the Supreme Court from functioning. Consider that Justice Kagan, due to her service as Solicitor General, has had to recuse herself in 38 cases. In these situations, the Court has well-established rules for dealing with its cases, including 4-4 splits. In the unlikely event that a tie should occur—as has occurred in only 2 of 38 of Justice Kagan’s recusals—the ruling of the lower court is simply upheld.
Indeed, the vast majority of the Supreme Court’s decisions are unanimous, nearly so, or split along non-ideological lines. Only a relatively small minority of cases—typically less than 20 percent—are decided 5-4, and even fewer divide along predictable ideological lines. And at its discretion, the Court has the authority to hold cases over or reargue them when a new justice is confirmed.
Put simply, the absence of one of the nine justices on the Court is far from calamitous, but a hastily-made lifetime appointment could be.
Mme. President, if the particular circumstances we face today counsel in favor of waiting until after the election, why would we act otherwise simply because the other party tells us to do so?
The Minority Leader made this same point in 2005 when he flatly rejected the claim that the Senate must always give nominees an up or down vote. In fact, he said that the very idea would be, in his own words, rewriting the Constitution and reinventing reality.
“The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say that the Senate has a duty to give Presidential nominees a vote. It says that appointments shall be made with the advice and consent of the Senate. That’s very different than saying that every nominee receives a vote.”
Yesterday, I was stunned to hear numerous Democrats contradict the Minority Leader on this point. The Minority Whip, for example, said that the “clear language of the Constitution” requires an up or down confirmation vote. That claim is obviously wrong on its face, since the Constitution says no such thing. By the Minority Leader’s 2005 standard, these Democrats today are rewriting the Constitution and reinventing reality. Perhaps they received different sets of talking points.
This claim by the Minority Whip and others that the Constitution requires an up or down confirmation vote is baffling for another reason. Between 2003 and 2007, the Minority Whip voted 25 times to filibuster Republican judicial nominees. In other words, he voted 25 times to deprive judicial nominees of the up or down confirmation vote that he now says the Constitution’s clear language requires.
Many of my colleagues on the other side of the aisle have also repeatedly observed that deferring the confirmation process until the next President takes office would be unprecedented. This point escapes me. The filibusters used to defeat Republican judicial nominees were also unprecedented, yet many Democrats voted for them anyway. The proper question is not whether this has happened before, but whether it is the appropriate step to take now.
Mme. President, the Senate’s job is to decide how best to carry out its duty of advice and consent in the situation before us. Thankfully, we are not without guidance in making that judgment. I think back to 1992, a presidential election year not unlike this one, in which different parties controlled the White House and the Senate. Judiciary Committee Chairman Joe Biden, now Vice President, came to this very floor on June 25, 1992, and delivered what he said was the longest speech in his then-19 years in this body. He evaluated the state of the confirmation process, suggested reforms for the future, and made a specific recommendation. He said that if a Supreme Court vacancy occurred in that presidential election year, President George H.W. Bush “should consider following the practice of a majority of his predecessors and not – and not – name a nominee until after the November election is completed.”
If the President did choose a Supreme Court nominee, Chairman Biden said, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” In other words, deferring the confirmation process until the next President was in office was the most appropriate way for the Senate to fulfill its advice and consent role.
Then-Chairman Biden listed several factors that led him to this recommendation, and every one of them exists today.
First, he noted that an appointment process in 1992 would take place in divided government. Different parties also control the White House and Senate today.
Second, he said that Presidents had recently made controversial Supreme Court appointments, noting that those nominees received a significant number of negative votes in the Senate. Again, the same is true today. President Obama’s appointments of Sonia Sotomayor and Elena Kagan, for example, are both among the top five most-opposed Supreme Court appointees in history.
Third, then-Chairman Biden noted that the presidential election process had already begun. Once again, that is the case today, with voters in numerous states having already cast ballots.
Fourth, Chairman Biden said that the confirmation process itself had become increasingly divisive. This criterion strikes me as ironic, given its source. After all, Senate Democrats were responsible for provoking the so-called confirmation wars with the political and ideological inquisition used to defeat the Supreme Court nomination of Robert Bork and the despicable smear tactics used against the nomination of Clarence Thomas.
Senate Democrats have also been responsible for every major escalation in judicial confirmations since 1992. Within two weeks of President George W. Bush’s inauguration, the Senate Democratic Leader vowed to use “whatever means necessary” to defeat undesirable judicial nominees. A few months later, Senate Democrats organized a retreat with the goal, as The New York Times described it, of changing the ground rules for the confirmation process.
In January 2002, former Democratic congressman, appeals court judge, and White House Counsel Abner Mikva urged Senate Democrats not to consider any Supreme Court nominees during President Bush’s first term.
In 2003, Democrats began for the first time to use the filibuster to defeat judicial nominees who otherwise would have been confirmed.
And in July 2007, Senator Charles Schumer said in a speech to the American Constitution Society that the Senate should not confirm a Supreme Court nominee during President Bush’s final 18 months in office except in what he called extraordinary circumstances.
When Chairman Biden said in 1992 that the state of the confirmation process should defer consideration of any Supreme Court nominees, no judicial nominee had been defeated by a filibuster in nearly 25 years. During President George W. Bush’s tenure alone, Democrats led 20 filibusters that ultimately defeated five appeals court nominees.
And more to the point, in 2006, Senators Biden, Clinton, Reid, Leahy, Schumer, Durbin, and Obama voted to filibuster the Supreme Court nomination of Samuel Alito. President Obama did say last week that he now regrets voting to filibuster the Alito nomination, though it is unclear why it took him 3,670 days to reach that conclusion.
And finally, after the D.C. Circuit Court of Appeals—a court that many of us consider nearly as important as the Supreme Court—rightfully invalidated several key actions of the Obama administration, Democrats openly sought to fill that court with compliant judges in order to obtain more favorable decisions. The President’s allies in this body—in their own words— “focus(ed) very intently on the D.C. Circuit,” to “switch the majority” and were willing to “fill up the D.C. Circuit one way or another.”
In the rush to eliminate any possible judicial obstacle to the administration’s overreaching agenda, Senate Democrats in 2013 used a parliamentary maneuver—the so-called nuclear option—to abolish the very nomination filibusters that they had used so aggressively, but with one telling exception: They left alone the possibility of filibustering a Supreme Court nomination. Having done so, they must continue to believe that the Senate’s advice and consent role allows denying any confirmation vote to a Supreme Court nominee.
I’m disappointed and, frankly, a little baffled at the response so far of my Democratic colleagues. Now-Vice President Biden and President Obama himself have both said that he was speaking in 1992 about a “hypothetical vacancy.” Of course he was, and his purpose in doing so was to outline what the President and the Senate should do if that hypothetical vacancy materialized. Well, that vacancy is no longer hypothetical; it is very real. Yet the Vice President now says that the Senate should not take his advice after all.
Vice President Biden has also said that his words from 1992 are being taken out of context. We have all faced the inconvenient truth of our past words, and the go-to objection is often about context.
I have two suggestions. First, my colleagues should read Chairman Biden’s speech for themselves. It takes up ten full pages in the Congressional Record, so there’s as much context as anyone could possibly want to consider. A second option is to consider how the media have described that speech. One CBS News story, for example, has the headline: Joe Biden Once Took GOP’s Position on Supreme Court Vacancy. Perhaps they too are contextually challenged.
Here is what The Washington Post said about the speech …
“But Biden’s remarks were especially pointed, voluminous and relevant to the current situation. Embedded in the roughly 20,000 words he delivered on the Senate floor that day were rebuttals to virtually every point Democrats have brought forth in the past week to argue for the consideration of Obama’s nominee.”
The constant refrain of Senate Democrats and their media allies over the past few days is that the Senate should just “do its job.” Of course, what they really mean is that the Senate should do what they want the Senate to do.
Then-Chairman Biden believed in 1992 that the Senate would be doing its job by deferring the confirmation process for a Supreme Court nominee. Senate Democrats presumably believed that the Senate was doing its job by denying confirmation votes to judicial nominees under President George W. Bush. The Minority Leader presumably believes that the Senate would be doing its job by not voting on nominations since, as he said in 2005, the Constitution does not require it to do so. And I can only assume that the senior Senator from New York believes that the Senate would be doing its job if it followed his 2007 recommendation and refused to consider Supreme Court nominees in a President’s final 18 months.
Perhaps the most audacious claim trafficked by the other side of the aisle over the past few days is, as the senior Senator from New York has said: “It doesn’t matter what anybody said in the past.” Or, as President Obama put it, “senators say stuff all the time.”
In response, consider this point: Benjamin Franklin wrote in 1789 that “in this world nothing can be said to be certain, except death and taxes.” I’d like to add one more thing to that list. It is equally certain that if a Supreme Court Justice beloved by the Left passed away in the final year of a Republican President’s tenure, a Democratic-controlled Senate would not only refuse to consider any nominee of the lame-duck President, but would extensively cite Chairman Biden’s 1992 speech and other such clear statements for support.
Indeed, my friends on the other side seem to have fallen into the trap identified by Justice Scalia in his opinion in the Noel Canning case, in which he warned that “individual Senators may have little interest in opposing Presidential encroachment on legislative prerogatives, especially when the encroacher is a President who is the leader of their own party.”
Before I conclude, I cannot let pass the disturbing comments yesterday by the Minority Leader about Judiciary Committee Chairman Chuck Grassley. I have served with Senator Grassley for nearly 25 years on the Finance Committee and for 35 years on the Judiciary Committee. If there’s anyone in this body who knows his own mind and makes his own decisions, it is Chuck Grassley. I was flabbergasted by the Minority Leader’s statement that Chairman Grassley has allowed the Majority Leader to “run roughshod” over him. If the Minority Leader’s case for committee action depends on grasping at such unwarranted and unjustified personal attacks, then the Minority Leader exposes the weakness of his own position.
Under Chairman Grassley’s leadership, the Judiciary Committee has reported 21 bipartisan bills, five of them have become law, the same number as during the entire 113th Congress under Democratic leadership. This record contrasts quite favorably to the senior senator for Nevada’s abysmal record in the last Congress as Majority Leader, in which the Senate set a record for bills that bypassed committee consideration and voted on only 15 amendments in all of 2014.
I know there are different opinions about whether or how to address filling the vacancy left by Justice Scalia’s death, and I appreciate that Senators and others feel strongly about these issues. Nevertheless, it is absolutely disingenuous for the Minority Leader, who today demands the same up-or-down confirmation vote that he 25 times tried to prevent for Republican nominees, to suggest that Chairman Grassley is doing anything other than what he believes is right.
Mme. President, I have served longer on the Judiciary Committee than any other current member of this body. During these past four decades – including during my more than eight years as Chairman of the Committee – I have strived to develop a record of true fairness toward the nominations made by presidents of each party. I have absolutely no doubt that our treatment of this vacancy fits squarely within this record of fairness.
The bottom line here is simple: The Constitution obliges the Senate to take its role seriously as a check on the President in the consideration of lifetime appointments to the federal courts, especially the Supreme Court. With voting already underway to replace our lame-duck president, delaying consideration of a nomination until after the election comports not only with historical practice, but also the prescription of key Democrats in the Senate and the White House over many years. By protecting the integrity of the Supreme Court from this environment, Senate Republicans are unquestionably doing the job the Constitution charges us to do.
above: Hatch discusses transportation issues in Utah and the proposed DRIVE Act. 
