America's Small Business Tax Relief Act of 2015--Motion to Proceed
Floor Speech
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Mr. HATCH. Mr. President, I rise once again to address the Supreme Court vacancy created by the untimely death of Justice Antonin Scalia. The Constitution gives the nomination power to the President and gives the advice and consent power to the Senate but does not tell either how to exercise their power. Our job of advice and consent begins with deciding how best to exercise this power in each situation, and the Senate has done so in different ways at different times under different circumstances. I don't think there is any question about that.
For two reasons, I am convinced that the best way to exercise our power of advice and consent regarding the Scalia vacancy is to defer the confirmation process until the current Presidential season is over. The first reason is that the circumstances we face today make this the wrong time for the confirmation process. This vacancy occurred in a Presidential election year with the campaigns and voting already underway. Different parties control the nomination and confirmation phases of the judicial appointment process. The confirmation process, especially for Supreme Court nominees, has been racked by discord in the past, and this is one of the bitterest and dirtiest Presidential campaigns we have seen in modern times. Combining a Supreme Court confirmation fight and a nasty Presidential campaign would create the perfect storm that would do more harm than good for the Court, the Senate, and of course, our Nation.
The circumstances I mentioned are identical to those that led Vice President Biden in 1992 to recommend exactly what we are doing today. In June of 1992, when he chaired the Judiciary Committee, he identified these very circumstances and concluded: ``[O]nce the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.'' To be fair, something significant has changed since 1992. The confirmation process has become even more partisan, contentious, and divisive.
In 2001 Democrats plotted a procedural revolution by launching new tactics to prevent Republican judicial nominees from being confirmed. Over the next several years, they led 20 filibusters of appeals court nominees and prevented several from ever getting appointed.
Then in 2013, Democrats used a parliamentary maneuver to abolish the very filibusters they had used so aggressively. The minority leader knows this because he was in the middle of it all. If the condition of the confirmation process was bad enough in 1992 for Chairman Biden to recommend deferring it to a less politically charged time, Democrats' actions since then have only made this conclusion more compelling today.
The second reason for deferring the confirmation process for the Scalia vacancy is that elections have consequences. In 2012 the election obviously had consequences for the President and his power to nominate, but the 2014 election had its own consequences for the Senate and its power of advice and consent. The reason the American people gave Senate control to Republicans was to be a more effective check on how the President is exceeding his constitutional authority.
The 2016 election also has consequences for the judiciary. The timing of the Scalia vacancy creates a unique opportunity for the American people to voice their opinion about the direction of the courts.
On Monday the minority leader reminded us of an important axiom. Let me refer to the chart again. ``No matter how many times you say a falsehood, it is still false.'' I agree.
The minority leader claims that the Senate has a constitutional duty, a constitutional obligation to hold a prompt hearing and timely floor vote for the President's nominee to the Scalia vacancy. Yesterday The Hill quoted him saying this: ``The obligation is for them to hold hearings and to have a vote. That's in the Constitution.'' By my count, then, the minority leader has made this claim here on the Senate floor more than 40 times. He said it as recently as this morning. No matter how many times he says this falsehood, it is still false. The minority leader's claim is false because the Constitution says no such thing. This is what the Constitution actually says about appointing judges: The President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint.'' Nothing about hearings or votes, nothing about a timetable or schedule.
I say this to my Democratic colleagues: Do you really want to stand behind a completely fictional, patently false claim like that? Do you really want to base your position on what the Washington Post Fact Checker called a ``politically convenient fairytale''? I understand that you want the Senate to conduct the confirmation process now for the President's nominee. We can and should debate that. But will none of you be honest enough to at least say what everyone in this Chamber knows--that the Constitution does not require us to do things that way?
The minority leader not only contradicts the Constitution; he contradicts himself. The minority leader was serving here in the Senate in 1992. Senator Reid took no issue with Chairman Biden's conclusion that the circumstances at the time--the same circumstances that exist today--counseled deferring the confirmation process. Senator Reid did not tell Chairman Biden that the Senate must do its job. Senator Reid did not assert then what he repeats so often today--that the Senate has a constitutional duty to give nominees prompt hearings and timely floor votes.
On May 19, 2005, during the debate on the nomination of Priscilla Owen to the U.S. court of appeals, the minority leader said of the Constitution--and I will refer to this chart again--``Nowhere in that document does it say that the Senate has a duty to give Presidential appointees a vote.''
In that 2005 speech, the minority leader was particularly adamant about this point. Claiming that the Senate has a duty to promptly consider each nominee and give them an up-or-down vote, he said, would ``rewrite the Constitution and reinvent reality.'' That is what the minority leader said then. The circumstances have changed, of course. Today the political shoe is on the minority leader's other foot, and he is the one claiming that nominees must have prompt consideration and up-or-down votes. By his own standard, the minority leader is rewriting the Constitution and reinventing reality. Now that it serves his own political interests and that of his party, the minority leader has reversed course and claimed in a recent Washington Post opinion column that the Senate has a constitutional duty to give nominees ``a fair and timely hearing.''
Let me once again mention 1992, when Chairman Biden denied a hearing to more than 50 Republican judicial nominees. He allowed no hearing at all, whether fair or unfair, timely or otherwise. In September 1992 the New York Times reported on page 1 that this was part of an obstruction strategy to keep judicial vacancies open in the hopes that Bill Clinton would be elected. Senator Reid served here at that time, but I can find no record of him demanding that every nominee get a timely hearing. Instead, he wholeheartedly supported his party's strategy of obstruction.
In his recent Washington Post column, the minority leader also wrote that the Senate has a constitutional duty to give nominees a floor vote. Between 2003 and 2007, however, he voted 25 times to deny any floor vote at all to Republican judicial nominees. As far as I can tell, we have the same Constitution today as we did in 1992, 2003, 2005, and 2007. We have the same Constitution today with a Democrat in the White House as we did in the past with a Republican President in the White House. The minority leader cannot have it both ways. He cannot today insist that the Constitution requires the very hearings and floor votes he and his fellow Democrats blocked in the past. I suppose they will say those were lesser court judges. Well, they were still judicial nominees.
On Monday, the minority leader again attacked the Judiciary Committee and its distinguished chairman, Senator Grassley. You have to go a long way to find anybody who is nicer, more competent, and more dedicated than Senator Grassley; yet he is being attacked again. I guess they think that somehow makes a difference.
The minority leader held up a quote from an editorial in an Iowa paper about how the chairman is conducting the confirmation process. I don't know when the minority leader started caring about what hometown newspaper editorials said about the confirmation process, but this appears to be yet another epiphany.
On February 19, 2003, the Reno Gazette-Journal criticized Democrats for their filibuster of Miguel Estrada to the U.S. Court of Appeals. A few weeks later, the Las Vegas Review-Journal called the filibuster campaign promoted by Senator Reid ``nothing more than ideological posturing and partisan blustering.''
As I mentioned earlier, the minority leader went on to vote 25 times for filibusters of Republican judicial nominees.
Also on Monday, the minority leader claimed that the Judiciary Committee is not doing its job and that the chairman is ``taking his marching orders from the Republican leader.'' Later in the day, the Senate unanimously passed the Defend Trade Secrets Act. The minority leader dismissed this legislative accomplishment because it was reported out of the Judiciary Committee unanimously. He said: ``I don't see today why the Judiciary Committee should be given a few pats on the back.'' Well, that is OK with me; we don't need pats on the back. The minority leader knows better though. He knows that the strong bipartisan outcome for this legislation was the result of nearly two years of work behind the scenes, primarily at the staff level.
It is painfully obvious that the minority leader desperately wants to score political points and to spin everything he can to his advantage, but to disparage and belittle the arduous work of both Democrats and Republicans, by both staff and Senators, is disgraceful and insulting. Before he denigrated this significant bipartisan achievement, he should have read the Obama administration's statement of policy on the bill. The Defend Trade Secrets Act will, the administration says, promote innovation and help minimize threats to American businesses, the economy, and national security interests. The Obama administration calls this an ``important piece of legislation'' that would ``provide important protection to the Nation's businesses and industries.''
This morning, the minority leader once again said that the Senate must do its job regarding the Scalia vacancy, and he asked, ``What is that job?'' The Senate's job is to determine how best to exercise its advice and consent power under the particular circumstances we face today. We have made that determination. We have done our job. We are making the same determination that the minority leader apparently supported in 1992. The Constitution no more dictates our decision than it did in 2009 when the minority leader correctly said that the Senate is not required to vote on nominations.
No matter how many times you say a falsehood, it is still false. No matter how many times the minority leader falsely claims that the Constitution dictates how and when the Senate must conduct the confirmation process, it is still false. No matter how many times he claims that the Senate is not doing its job, it is still false. No matter how many times the minority leader questions the integrity and character of the Judiciary Committee chairman, those questions are still false. No matter how many times the minority leader contradicts himself and tries to avoid his own judicial confirmation record, his claims today are still false.
The Senate today has the same power of advice and consent as when Democrats were the majority. We have the same responsibility to determine the best way to exercise that power in each situation. In 1992 Chairman Biden recommended deferring the confirmation process so that ``partisan bickering and political posturing'' did not overwhelm everything else. The false claims and disreputable tactics being used today, including by the minority leader, only confirm Chairman Biden's judgment and its application today.
All of this is disappointing to me, to be honest with you. We have an honest disagreement as to when this nomination should be brought up. We have an honest disagreement as to how it should be brought up. We have an honest disagreement about the times we are in. We think this Presidential race is horrific on both sides. And I, for one, as former chairman of the Judiciary Committee, am deeply concerned that we bring up this nominee in the middle of this awful mess called the Presidential election, with all of the politics and screaming and shouting and arguing from both sides. Considering a nominee now would demean the Court. It would demean what we are trying to do around here. Waiting to consider a nominee only makes sense given that voting in this election is already underway. For reasons I have explained before--and no doubt will do so again--the confirmation process for the Scalia vacancy should be deferred until the election season is over.
I am also troubled by the minority leader's attacks on Chairman Grassley. I am concerned because I think that to have any leader attack somebody as decent and as honorable as Chuck Grassley is below the dignity of this body. Whether someone has disagreements with Chuck or not, they can explain those disagreements without being slanderous or libelous.
There are very few people in this body who are as honest and as decent as Chuck Grassley. I think all of my colleagues are honest and decent, but very few of them would rise to the level Chuck Grassley does. He is an old farmer who believes in doing right and who, to the best of his ability, always does right. I have been around Chairman Grassley for a long time, and I have the utmost respect for him. He is not even an attorney. Yet he is running the Judiciary Committee very well. He is a good man. He deserves to be treated like a good man and a good leader and a good chairman.
We are going to have our differences in this body, but we should treat each other with the utmost respect and not accuse people of being things they are not. I can say one thing. I have served here for 40 years and Chuck Grassley has been one of the best people I have served with on either side.
I think my friends on the other side understand that I care a great deal for them and that I like working with them. Sometimes we have to modify things so they are pleased, but that is part of this process. Sometimes we very vehemently disagree. That is one of the great things about the Senate--we can disagree without being disagreeable. We can find fault in the issues, but I think it is time to quit finding unnecessary fault in each other.
This is the greatest deliberative body in the world. I feel good to have been able to serve as long as I have here, and I respect my colleagues on the other side of the aisle.
Even so, we have a disagreement on when this body should consider a nominee, and that disagreement is a sincere one. The fact is, it would be terrible to bring up the nominee in the middle of this particular Presidential election.
Let me just conclude by saying I love this body and I love my colleagues. I just hope we can open the door to understanding each side a little bit better than we do.
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