Filling the Supreme Court Vacancy
Floor Speech
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Mr. CARPER. Madam President, this is a day-night double header. That was the day game, and what I want to do now is focus on the second half of the story as long as time will allow me to do that.
As the Presiding Officer knows, I come from the State of Delaware. Delaware is noted for a number of things, and one of the things we are noted for is that before any other State ratified the Constitution, we did it. For 1 whole week, Delaware was the entire United States of America. We opened it up and we let in Maryland and New Jersey and Pennsylvania, ultimately Iowa and other States, and I think it has turned out pretty well most days. But we were the first to ratify the Constitution.
My family and I live in northern Delaware, and just up the road from us is Philadelphia. That is where the Constitution was first debated, and folks from throughout the 13 Colonies came and argued for and against different provisions and how we should set up the structure of our government. One of the hardest provisions they argued on and debated was whether there should be a legislative branch at all, and if there should be, should it just be unicameral--just one entity, one body within that legislative branch--or should there be two. Should the number of votes and the power that States have be in accordance with the size of their State, how many people they have, or how would they balance things out.
Some of them worked out the Connecticut Compromise that said that every State will have two Senators--the same number--and they will be part of the U.S. Senate, and the House of Representatives would be comprised such that the more people who live in a State, the more Representatives they would have. That was the Connecticut Compromise. It was worked out. It was maybe not a perfect compromise in the eyes of some, but it enabled them to move forward, and most people think it is fair and reasonable.
Another really tough issue they wrestled with in those days was with respect to the third branch of government. We have the executive and the legislative and the judicial branch. The question was, What are the judges going to do, these Federal judges? How are they going to be appointed? Who is going to pick them? And if it is the Chief Executive Officer, should the President be able to name by himself or herself who the judges are going to be, the Federal judges and the Supreme Court Justices? Should it be left up to the Senate? Should it be left up to the House of Representatives? Should it be a joint effort by the House and the Senate? Should there be some role for the President, the Chief Executive, to play? How should it work out?
Time and again they voted on this issue at the Constitutional Convention in Philadelphia. Finally, after a number of votes that were just not successful--they couldn't come to a successful conclusion-- they actually called out for clergy to come in and called on Divine intervention to get over this issue on how to pick, how to select Federal judges. I don't know if it was Divine intervention, but at the end of the day the deal said: The President shall nominate--not appoint, not name, but shall nominate--folks to serve as Federal judges, including the Supreme Court, and the Senate would have an opportunity to provide advice and consent to the President.
We have argued a lot over the years about what advice and consent should be, but it makes very clear that the President has a job to do with respect to the naming of judges. I believe we have a job to do as well.
About 300 yards from the tavern where the Constitution was first ratified on December 1787 in Delaware, with one hand on the Bible I raised my other hand and took an oath to defend the Constitution as Governor of Delaware. I had never thought very much about what kind of qualities I would look for in a judge.
With my Republican opponent in the Governor's race, a wonderful guy named B. Gary Scott, in 1992, we had 35 joint appearances together, debates. In all those forums, no one ever asked: What quality would you look for in the people you would nominate to be a supreme court justice for the State of Delaware or a member of the court of chancery, which is a court that has a national and international role to play?
The superior court also hears not just Delaware cases but national cases as well. In all those forums, nobody ever asked me: What would you consider? As it turned out, that was a very important part of my job. I am proud to say the Delaware judiciary is one of the highest regarded of any State judiciaries that we have. We have a very unusual system where there has to be an equal balance between Democrats and Republicans on the judiciary. It is not a spoils system. If there is one more Republican than a Democrat and there is a vacancy, you have to name a Democrat. That is the way the system works.
When I was Governor, we had a person who had been chancellor of the court of chancery, which is a high honor. He decided he was going to leave. So we had a vacancy to fill. I named a Republican. In that case, I actually had the flexibility to name a Democrat or Republican. I wanted to name the best person that I thought was interested in serving. The criteria I used in nominating people to serve on the judiciary in Delaware was that I wanted people who were really smart. I wanted to nominate folks who knew the law. I sought to nominate people who embraced the Golden Rule, who treat other people the way they want to be treated, so that folks who came before them in a courtroom received fair and equal treatment. I wanted to nominate people who worked hard. I wanted to nominate people who had good judgment. I sought to nominate people who were able to make a decision. Sometimes people can have a lot of those qualities but have a hard time making a decision. I didn't want to do that. I wanted to have people who could do all those things.
My hope is that this President will look at Democrats, Republicans, and Independents and find among them the man or woman who meets all that criteria and more. That is the President's job.
I was up at the Detroit Auto Show. I know the Presiding Officer has a lot of assembly and supply operations in his State. Delaware used to, until fairly recently, build more cars and trucks per capita than any other State. So I care a lot about who is running GM and Chrysler. We lost both plants a few years ago when they went into bankruptcy. But I still go back to the Detroit Auto Show most years to keep in touch with the industry.
This last January, a month ago, I was in Detroit. It was the opening day of the Detroit Auto Show, with tens of thousands of people converging on the Detroit Auto Show, going this way and that way to see the different reviews and different vehicles, concept cars or new production vehicles that are going to be launched maybe later this year.
During the afternoon, I was looking for a restroom. I found one and so did hundreds of other people--in and out of this one restroom. I noticed an older gentleman who was a custodian standing with his cart, his mop and bucket, and his broom, outside of the mass of humanity. I walked in. In spite of all of those people, the place was remarkably clean.
I figured he was the janitor who had responsibility for this restroom. When I came out, I said to him: I just want to say, sir, that this is a really clean restroom. With all the different kinds of people you have coming in and out of here, I don't know how you do it. I just want to say thank you for doing your job really well.
He looked me in the eye and said: That is my job. He said: This is my job. And he said: I try to do my job well. He said: Everybody has a job, and everybody should try to do their job well.
I thought to myself: Wow, wow, what insight, what a message.
Under the Constitution, the President has a job. Apparently he is moving--not with haste, but I think with dispatch--to try to meet his responsibilities. I know we have had any number of times when Presidents have nominated Supreme Court Justices in a Presidential election year. I know a dozen or more times it has happened. I think every single time we had hearings for that nominee. There has been the opportunity to debate the nominee, question the nominee, meet with the nominee, debate here on the floor, and vote on the nomination up or down. I don't know of any time when we have not done that, even when a nominee came to us during a Presidential election year.
I know we are in a crazy election season. It is still 8 months, 9 months before the election. But I hope that, at the end of the day, just like that janitor at the Detroit Auto Show intent on doing his job, the rest of us have the feeling that we have a job to do and that we should be in town doing our job. We have that need. We have that responsibility. I hope we will fulfill it.
(Mr. COATS assumed the Chair.)
Mr. President, the other thing I want to say is ``baseball.'' When the Presiding Officer and I were House Members together, we used to play baseball. We played in the congressional baseball game maybe 10 years ago--me on the Democratic side, him on the Republican side. For a year or two, I was almost selected as the most valuable Republican player--and I am a Democrat. So I wasn't always a great player, but I gave it my best.
I was in Florida for an event over the weekend, and last week in Florida and Arizona something wonderful happened. What happened was that spring training camps opened. Pitchers and catchers reported, and then the full teams started to report. When they start the spring training games in a day or two--maybe tomorrow--teams will take the field and they will take the field with nine players.
When Justice Roberts was going through his confirmation hearing before the Judiciary Committee, he was asked: What is the job of the Supreme Court? How would you describe it, in a simple way?
He said: Our job basically is to call balls and strikes.
When baseball teams take the field, they have nine players in nine positions. When the Supreme Court is in session, they have nine justices--or at least they did until the death of Justice Scalia. Just like you can't have a baseball team take the field without the shortstop or without the catcher or even without the second baseman or the center fielder and play well and do their job, at the end of the day, the Supreme Court is a team. They need nine--not players but nine justices--to be able to do their job well. Let's keep that in mind.
The last thing I would say is that the American people are frustrated with us and our inability to get things done. Sometimes I can understand why they would feel that way. We have a great opportunity to get something done. I hope the President will nominate a terrific candidate, and I hope our Republican friends will at least have the courtesy of meeting with that man or woman, give him or her a chance to present themselves and explain what they are about, have a hearing on that person, and then give them the honor of a vote. I think they deserve that.
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