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Mr. PETERS. Mr. President, our Nation's Founders fought the British Empire to create an independent nation governed by laws. They fought so their children could be freed from the callous fiats of a monarchy on the other side of the ocean.
Our Founders learned from the excesses and mistakes of European powers and came together to design a new system of government, a carefully balanced system, one of distributed powers and responsibilities, checks and balances. American schoolchildren learn about the three coequal branches of government and the unique roles they play in maintaining that carefully crafted balance of power.
A strong, independent, and fully functioning judiciary is inseparable from a healthy American democracy. Our Founders wisely reached consensus to create a system wherein the President designates judicial nominees and the Senate provides advice and consent. This prevents undue influence or control by either the White House or the Congress over the Supreme Court. Simply put, the Senate has a constitutional duty to provide timely consideration of any President's Supreme Court nominees.
Today, I would like to focus on three distinct and complementary reasons why we must fulfill this obligation. First, we should examine the ample historical records available to determine the intent of our Nation's Founders. Second, we should look at the actual text of the Constitution and the plain meaning of the words in the document we all agree represents the highest law in the land. Finally, we can look at the Senate's track record and traditions when it comes to considering Supreme Court nominees.
As Senators, we raise our hand and take a solemn oath to defend the Constitution of the United States and faithfully discharge the duties of our office. One of the core constitutionally mandated duties of serving as a Senator is to advise and consent on Supreme Court nominees, and it is not one we can take lightly.
We are fortunate that many of our Nation's forefathers were prolific writers who left us reams of documents that now help us understand the debates and the discussions that led to our current system of government.
Our Nation's fourth President and the youngest member of the Constitutional Convention, James Madison, kept a record of the debates that occurred during those formative months of our Nation in the summer of 1787. I urge my colleagues to revisit this record as they consider how to proceed with our Nation's next Supreme Court nominee.
On June 4, 1787, James Wilson of Pennsylvania--a signatory of the Declaration of Independence and a member of the Continental Congress-- argued that justices should be appointed by the executive branch alone and strongly opposed appointments made by the Federal legislature. Madison disliked the appointment of judges by the legislature but also wasn't satisfied with a unilateral Executive appointment. He ultimately suggested that judicial appointments should be made by the Senate. This issue of judicial appointments was debated vigorously and continued over multiple sessions as delegates traded proposals. Charles Pinckney of South Carolina and Roger Sherman of Connecticut opposed Wilson and pushed for the legislative appointment of Justices.
Madison, however, moved us closer to our present system by suggesting that only the Senate should have the power to appoint Justices to the Supreme Court and not the House of Representatives.
Nathaniel Gorham, a delegate from Massachusetts, first introduced the concept of appointment by the President with the advice and consent of the Senate. This balanced approach resolved the concerns of delegates who believed unilateral Presidential appointments bordered on monarchy, while also addressing the concern that legislative appointments were simply too vulnerable to the fleeting parochial interests that may dominate the discussion on any given day.
Months later, on September 7, 1787, the delegates unanimously agreed on the final language that governs the nomination and confirmation of Supreme Court Justices to this day. Our Founders' focus on the appointment and confirmation of the Supreme Court Justices was not an academic exercise, nor was it an intergovernmental turf war. It was an iterative, deliberative process with a clear goal: a strong and independent judiciary.
Alexander Hamilton, probably the most prolific of our Founders when it comes to the written word, directly addressed the independence of the judiciary in The Federalist Papers. He argued: ``Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.''
Hamilton was concerned that a Supreme Court too heavily influenced by Congress or the White House would not adequately protect the rights and freedoms of the American people. He wrote that an independent judiciary ``will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.''
Tying the hands of the Supreme Court by keeping an empty seat on the nine-member bench amounts to the union between the departments that Hamilton warned us about. Refusing to even consider a Supreme Court nominee strengthens the Senate to the detriment of the executive and judicial branches, throws off a carefully crafted balance of power, and contravenes our Founders' intent. Some legal scholars, Senators, and members of the judiciary argue that intent is irrelevant and that we should strictly construe the words on the page.
Let's look at the plain meaning of the constitutional text. Article 3, section 1, states that ``The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.''
While lower courts could be established by Congress, the Supreme Court resolves issues between and among the States. It is the highest Court in the land, a Court of finality.
The Constitution specifically addresses the appointment of Justices to the Supreme Court.
Article 2, section 2, states the President ``shall nominate''--and I repeat ``shall nominate''--``and by and with the Advice and Consent of the Senate, shall''--and I repeat ``shall''--``appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.''
``Shall'' is not a word that is considered ambiguous. Its meaning hasn't evolved over time. It is not open for interpretation. It is not permissive in nature. It is instructive, and it is clear.
There are many modern-day issues we face that our Founders could have never imagined. We will grapple with novel constitutional questions for as long as this Nation exists. But the question of how Supreme Court Justices are appointed is something our Founders debated, decided, and they enshrined in the Constitution.
The President is required to nominate a Justice, and the Senate has the job of confirming or rejecting that appointment. If the Senate attempts to undermine the President's constitutional responsibility to nominate a Justice and this body fails to provide advice and consent on that nomination--well, we then have abdicated one of the Senate's most important and sacred constitutional obligations.
The Senate has a longstanding tradition of swiftly considering and confirming judicial nominees. Presidents and the Senate have historically taken their responsibility to fill the Supreme Court very seriously, even when they were at odds over who that nominee may have been. I am surprised and also disappointed that so many of my colleagues seem to be ignoring their constitutional obligations in a stark departure from the history of the U.S. Senate.
According to the nonpartisan Congressional Research Service, since the Judiciary Committee's creation 200 years ago, they have typically reported Supreme Court nominations that were opposed by a committee majority to allow the full Senate to make the final decision on whether the nominee should be confirmed.
Let me repeat this very important fact. Even if a nominee was opposed in committee, their nomination was still brought to the floor of the Senate for a vote.
Let's also consider recent history. Since 1975, the time from a President's formal nomination to hearing has averaged 42 days. The time from a nomination to committee vote has averaged 57 days. The time from a nomination to floor vote has averaged 70 days.
The current vacancy we are dealing with occurred 269 days before the 2016 election and with 342 days remaining in President Obama's term in office. Without doing a whole lot of math, it is safe to say that there is more than enough time to nominate, consider, and confirm a Supreme Court Justice before the November election if we move at a deliberate, average pace, on par with what has existed for over four decades.
If the Senate waits for a new administration before even considering a nominee, we will be approaching a full year with an empty seat on the highest Court in the land. Not since the American Civil War has the Senate taken longer than a year to fill a Supreme Court vacancy.
There is a reason that Presidents and the Senate work together and historically do not drag out Supreme Court nominations: An eight-member Supreme Court simply cannot fully do its job. The cases in which the Supreme Court relies on having all nine Justices to break a deadlock are often those that are most contested. They involve timely, novel legal issues and resolve splits between Federal circuit courts.
Legal scholar Justin Pidot recently cited Chief Justice William Rehnquist regarding situations where the court of appeals had arrived at different conclusions about the resolution of legal issues. Rehnquist said: ``Affirmance of each of such conflicting results by an equally divided Court would lay down `one rule in Athens, and another in Rome,' with a vengeance.''
Over 30 constitutional law scholars recently echoed that sentiment, writing: ``A vacancy on the Court for a year and a half likely would mean many instances where the Court could not resolve a split among the circuits. There would be the very undesirable result that the same federal law would differ in meaning in various parts of the country.''
Federal law is just that: It is Federal. We cannot have one interpretation of Federal law in Michigan, Ohio, and Kentucky and a whole different interpretation of law in Wisconsin, Illinois, and Indiana.
Previous Presidents have weighed in on the importance of a fully operational Court. President Reagan said: ``Every day that passes with a Supreme Court below full strength impairs the people's business in that crucially important body.''
I know many of my colleagues in the Senate revere President Reagan, and I wish to repeat his important words that have so much relevance to what we are debating here today. He said: ``Every day that passes with a Supreme Court below full strength impairs the people's business in that crucially important body.''
In fact, President Reagan was able to make a Supreme Court appointment in his final year in office. The Senate fulfilled its duties by providing timely consideration of that nominee, Justice Anthony Kennedy.
Forcing lower courts to serve as the courts of last resort empowers congressionally created courts and weakens the Supreme Court in a way that was never intended by the Framers of the Un ited States Constitution.
I wish to remind my colleagues that the Constitution allows Congress to decide how to organize the lower courts. But the Constitution requires--it requires--the advice and consent of the Senate for confirmation of Supreme Court Justices. We must do our job so that the Supreme Court can do theirs.
The American people have elected President Obama to office twice, and he has a constitutional obligation and clear authority to nominate a candidate to succeed Justice Scalia on the Supreme Court.
The Senate has previously confirmed six Supreme Court nominees in Presidential election years, including most recently under President Reagan. There is no reason we should not consider any nominee put forward by the President with a fair hearing and a vote. Each and every Member of this body has the responsibility to thoroughly scrutinize and decide whether or not to confirm the President's nominee.
I ran for the U.S. Senate because of my desire to serve the people of the State of Michigan. I took an oath, as did every Member of this body, swearing to defend the Constitution and faithfully discharge the duties of our office.
The Senate must honor the thoughtfulness of our country's forefathers and respect the independence of each of the branches of our Nation's government. We must also respect the United States Constitution. The role of the Supreme Court is simply too important to our democracy for the Senate to ignore the Constitution and wait nearly a year to do its job.
Members of this body must fulfill their obligations. The Members of this body must honor their duty and uphold their constitutional oath. And the Members of this body must fully consider and evaluate the qualifications of any nominee the President submits.
I look forward to doing my own thorough review of the President's nominee and working with my colleagues to fulfill our essential constitutional duties.
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