Filling the Supreme Court Vacancy

Floor Speech

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Mr. MARKEY. Mr. President, former Chief Justice Warren Burger once explained the historical significance of the U.S. Constitution as follows. He wrote that ``in the last quarter of the 18th century, no nation in the world was 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 ``a remarkable document--the first of its kind in all of human history.''

Chief Justice Burger was right. The Constitution is remarkable, and it is remarkable not only for what it says but how it says it.

In some places the Constitution speaks in poetry, like the Preamble that begins with ``We the People of the United States,'' and talks of ``a more perfect Union'' and ``the Blessings of Liberty.''

In 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 II, section 2. Its words could not be clearer. It simply states that the President of the United States ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, and Judges of the supreme Court.''

There is no ambiguity there. It is not an invitation to reinterpretation. The President's obligation under 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 the Senate disregards the Constitution and ignores a nomination to the Supreme Court. It is advice and consent, not avoid and contempt.

The advice and consent clause is not the constitutional equivalent of Roger Maris's home run statistics. There is no asterisk in the Constitution that directs readers to small print that says ``except in an election year.'' There is 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 they would not hold a hearing on a Supreme Court nominee to fill Justice Scalia's seat until after the upcoming Presidential 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 as President. In the last 100 years, the Senate has taken 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 Senate Republicans because they seem willing to go to unprecedented lengths to stop this constitutionally mandated process from moving forward.

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 they routinely decry.

The Republicans would rather shirk their constitutional responsibility than let President Obama appoint another Justice to the Court. They would rather deprive the country of a fully functioning Supreme Court than fulfill their constitutional duty, not just for the remainder of this term but for the next term of the Supreme Court as well.

Now, why is that? Well, because a 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-to-4 decisions to understand why Republicans prefer a vacancy on the Supreme Court. With only eight justices instead of nine, the Court's decisions can deadlock with a 4- to-4 vote. A tie vote leaves in place the lower court decision that has been appealed to the Supreme Court. A 4-to-4 deadlock can have far- reaching consequences.

Take Bush v. Gore, the 2000 decision that stopped Florida's vote recount in the 2000 Presidential election. Bush v. Gore was decided by a 5-to-4 vote. If a seat on the Supreme Court had been vacated, resulting in a 4-to-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 nine human beings are involved, but there is a responsibility that we have in the Senate to ensure that we, in fact, have a full Supreme Court.

The President shall nominate. That is without question the duty he has. We shall provide advice and consent. That is our duty. We don't have to give consent at the end of the day. We can have a vote on the Senate floor to determine whether 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 U.S. Constitution remains a remarkable document. Let us treasure it, not twist it. Let us respect it, not run from it. Let us fulfill our constitutional obligations and have a hearing on the President's nominee and a vote by the Senate. In other words, to the U.S. Senate: Do your job. It is in the Constitution. There is 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 are direct instructions for the President in the Constitution and there are direct instructions for us in the Senate.

Let us hope that after the President nominates a candidate, that this body deliberates, listens to all the testimony, and then has a vote on whether that person is qualified to serve on the Supreme Court, but the only way that is going to happen is if this body does its job. So we ask the Members of the majority to ensure that happens.

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