Energy and Water Development and Related Agencies Appropriations Act, 2016
Floor Speech
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Mr. MERKLEY. Mr. President, the most important words in the crafting of our Constitution are the first three words: ``We the People.'' With those three words, the Founders described what the government of our new Nation was all about.
As President Lincoln later summarized, it is a government of the people, by the people, and for the people. In fact, even in the crafting of the Constitution, the Founders put special emphasis upon those three words, putting them in supersized font before all the details that were to follow.
Periodically, I will come to the floor to talk about issues that are closely related to the ``we the people'' vision of our Constitution and our responsibilities under the Constitution. This week, I rise to address the responsibility of the Senate and its advice and consent role under the Constitution.
The President's duty is to nominate a Supreme Court nominee when there is a vacancy. That responsibility is written very clearly into the Constitution. It says that ``he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court'' in article II, section 2 of our beloved Constitution.
The Senate then has the responsibility to provide advice and consent, as required, and over time it has been understood that we need to vet the nominee, determine whether the nominee is fit to serve in the post he or she will serve in, which is particularly important in the Supreme Court. That is how this esteemed Chamber, our beloved Senate, has operated for more than 200 years.
In fact, we need to go back now and understand how this design was created. I have come to the floor before and read from Hamilton's Federalist Paper 76 that summarizes a conversation that was taking place over the nomination process. Some folks--in crafting the Constitution--thought that responsibility should be solely with what they referred to as ``the assembly,'' which is this body, the Senate. The reason they argued that is, it would be a balance to the power of the President in the executive branch if the assembly, the legislative branch, were to make the appointments. However, they then realized that those appointments would probably never get done because there would likely be a lot of horse trading and the most qualified person probably wouldn't be nominated. Instead, it would most likely be the friend of one Senator traded for the friend of another Senator, and that didn't make sense. They said: No, it would make more sense to invest the responsibility for the quality of the individual in a single individual. As the expression goes, the buck stops here. It stops at the President's desk. The President would have the responsibility to nominate individuals to serve in the executive and judicial branches and will bear the public responsibility for the credibility and quality of those nominations, but in that conversation, they also thought that was too much power for the President to have. What if the President starts to appoint friends or those with little experience or those of unfit moral character? There needs to be some kind of check, so in that regard then came the role of the Senate to give advice and consent. In order to do that, the nomination would go before this body for debate and then this body would vote on that nominee.
The words that were the key words Hamilton used in describing the responsibility was to determine whether the individual was ``of unfit character''--fit character, unfit character. Did that nominee have the qualifications necessary for the job and the personal characteristics required to fulfill the job effectively?
Well, here we are and President Obama has fulfilled his responsibility under the Constitution. He has nominated Judge Merrick Garland. We now have our responsibility in the Senate to vet this nominee, examine Judge Garland's record, examine any aspect of his writings or his previous court decisions, and determine whether Judge Garland is a fit character or unfit character. That is our responsibility in the Constitution.
A number of my colleagues across the aisle--my Republican colleagues--have said: We don't want to fulfill our responsibility under the Constitution. We are just going to ignore the responsibility that has been vested in the Senate of the United States. They are in the majority, and a nomination can't go to a committee for a hearing and determine whether an individual is of fit character or unfit character without the majority making it happen. The nomination can't come to the floor without a majority vote in committee so it can then be put forward for our consideration. Unfortunately, the job strike of the majority party in the Senate--failing to fulfill its responsibility under our Constitution--is now imposed on this entire body.
If we were within the usual timeline, we would be holding a hearing on Judge Garland this week. Since 1975, the average time from nomination to committee hearing has been about 42 days, but instead the leadership has said: We are not going to honor our responsibility. I find that deeply disturbing. Each and every one of us stood before this body and took an oath to fulfill our responsibilities under this Constitution, and that is what we should be doing right now.
I say to my colleagues: Do your job. After a bit of reflection on the importance of how our government functions, one would think there would be a bit of reflection upon what we owe to maintain the integrity of our institutions and that this decision to go on a job strike would have been reversed.
I have talked to colleagues who are, quite frankly, somewhat embarrassed because they have been asked to toe the line, and they don't feel it is right that they should be, in fact, failing to fulfill their responsibility, but there is a lot of pressure on them. We need to set aside political pressure when it comes to the integrity of our institutions.
Since the 1980s, every person appointed to the Supreme Court has been given a prompt hearing and a vote within 100 days of their nomination. This chart shows three different phases as to the vacancies. Sometimes those vacancies have been longer or shorter in terms of before a nomination occurs. The red bar shows the start of the nomination process and the green bar shows the time before a vote is taken, which is the period of consideration. In every case, the red and green bar together are 100 days or less. This dates all the way back to Justice Sandra Day O'Connor.
It has now been 100 days. How many days are there between now and when the next President takes office? What is the math? Well, there are 268 days. So for anyone who comes to this floor and says there isn't time, that individual is making a case with no foundation because the record shows that from the time the nomination was made until a vote, time and time again--under Democrats or under Republicans--it has been less than 100 days. Yet we have more than 260 days left before the next President takes office.
There are other folks who have come to the floor of this Chamber and have invented this new principle called the job strike during the last year that a President is in office. They act as if there is something in the Constitution which gives this Senate permission not to do its job during the last year a President is in office. Well, I encourage my friends to pull out and read the Constitution, find that clause, and bring it to the floor because it does not exist. The Constitution anticipates that each of us will fulfill our responsibilities throughout the entire length we serve until we exit office, that a President will serve and work through all 4 years of his or her term, that a Senator will serve and work through all 6 years of his or her term. There is no vacation in the Constitution for the last year. There is no special permission to fail to do your constitutional responsibility in the last year of a term. That simply doesn't exist.
Many Supreme Court Justices have been confirmed in the final year of a Presidency, and so for those who come to this floor and argue that there is some historical precedent, that precedent doesn't exist either. Republican and Democratic Presidents have issued nominations regardless of the party in control of the Senate and the Senate, regardless of the party of the President, has done its job in case after case after case throughout time. Until this moment, the Senate has vetted the nominees, individual Senators have met with the nominee, the nominee's record has been exposed, thereby giving the public the opportunity to give us their input, and we would have voted in committee and on this floor.
(Mr. BARRASSO assumed the Chair.)
If we look to the recent past, Justice Kennedy was confirmed in the last year of President Reagan's final term. By the way, the Senate was controlled by Democrats. The Democratic leadership didn't say: We are going to go on a job strike and not vet the candidate and not hold a vote and not fulfill our responsibility. No, they honored their responsibility under the Constitution and so should every Senator today.
This is a black mark on the record of the Senate. Think about what it will lead to. For example, let's say the job strike we are engaged in is purely for political reasons in an effort to pack the Court with more conservative Justices. Let's say it succeeds in delaying a nomination until the next Presidency, and the next President nominates someone on the far edges and way out of the mainstream, then what does each party do? Do they say: Well, the other party worked to pack the Court and refused to do their job, and, now, because the consequences would be so destructive and so partisan to the Court, we will refuse to do our job but only because of what preceded it? That is not a conversation we should ever have. That is not a dialogue we should ever have in this Chamber of action to politicize the Court, pack the Court, followed by reaction to try to blunt the impact of the initial action, followed by reaction, back and forth. This will deeply undermine the integrity of the Supreme Court of the United States. Let me tell you, the Court is already in trouble. The activist Court decisions of the far right, trying to write legislation through Court decisions to change the fundamental understandings of how our Nation operates, have already deeply politicized the Court.
Citizens United turned the fundamental premise written into our Constitution on its head. Our Constitution was written all about, ``We the People.'' Jefferson talked about the mother principle; that we could only claim to be a republic to the degree that the decisions reflected the will of the people and that in order for that to happen, citizens had to have an equal voice. His vision was one of the town's square, where there was no cost to participate. Everyone had a chance to stand and have their say.
Lincoln talked about the equal voice principle for citizens. The fundamental premise in a republic is to express the will of the people. People have to have the ability to participate in roughly equal proportion, but now the town square is for sale. It is the television, the Internet, the Web sites, the radio, and our Court has decided it is OK for the very rich to buy it up and destroy the equal voice principle that our Founders so cherished.
This activist Court on the far right has decided to undermine those important first three words of the Constitution: ``We the People.'' This has produced a great cynicism in America because once this massive concentration of money buys up the town square, buys up the airwaves, influences elections, it is no longer ``We the People,'' it is ``we the powerful'' and ``we the privileged.'' Wouldn't it be wonderful not to have had the Supreme Court decisions that have undermined the integrity of our Supreme Court, but we have them and now the majority in this body wants to further damage the Supreme Court, further politicize the Supreme Court, and that is a huge mistake. We should go in the other direction. We should invest in the integrity of the Supreme Court. That doesn't mean a nominee gets automatically passed through this body because we have a job under the Constitution. We have a responsibility to vet the nominee. We have the responsibility, as Hamilton said, to judge if the nominee is unfit or fit. But how can you have that judgment if we do not hold hearings? How can you have that judgment if the committee does not vote? How can you have that judgment if there is not a debate on the floor of the Senate? How can you have that judgment if there is not a vote on this floor?
So I say to my colleagues: End your job strike that is so out of sync with the tradition of the Senate. End your job strike that is so damaging to the Supreme Court's integrity. End your job strike that is so damaging to the ``we the people'' principles of our Nation. Do your job. Do your job. Hold the hearing. Meet with the nominee. Exercise your vote. Do your job.
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