Energy and Water Development and Related Agencies Appropriations Act, 2016

Floor Speech

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Mr. HATCH. Mr. President, I rise to speak about the conflict over the Supreme Court vacancy created by the untimely death of Justice Antonin Scalia. This conflict has two dimensions, one focusing on the nominee and the second focusing on the confirmation process.

America's Founders established a system of government that preserves liberty by limiting government and including a defined role for judges. Three of America's Founders provide principles helping to define that judicial role. James Wilson signed the Declaration of Independence, helped draft the Constitution, and was one of the six original Supreme Court Justices appointed by President George Washington. He explained our system of government by saying that ``here, the people are the masters of the government.''

The second principle is from President Washington himself, who said in a farewell address, on behalf of our system of government, that the basis of our system of government is that authority to control the Constitution belongs to the people.

Alexander Hamilton served in the Continental Congress, helped draft the Constitution, and became the first Secretary of the Treasury. He wrote 51 of the 85 installments of the Federalist Papers, the single most important reference for understanding the Constitution. In Federalist No. 78, he wrote that the judiciary is the weakest and least dangerous branch because judges exercise judgment but not will.

These three principles outline the proper role for judges in our system of government. The people are the masters of government. They alone have the authority to control the Constitution, and judges may exercise judgment but not will. Our system of government and the liberty it makes possible requires judges who leave control of the law in the hands of the people.

The conflict over the appointment of judges is really a conflict over the power of judges--a conflict over whether this should still be the proper judicial job description. Those whose political agenda fares poorly with the American people and their elected representatives want a very different kind of judge. They want willful judges who will impose their political agenda by manipulating statutes or the Constitution.

This is the first dimension of the conflict over filling the Scalia vacancy. I have spoken and written extensively about how the Senate owes the President some deference regarding nominees who are qualified by both legal experience and judicial philosophy. Those considerations are relevant when the confirmation process takes place.

However, the second dimension in the conflict over filling the Scalia vacancy focuses on the process, rather than the nominee. When and how the nomination process should occur is rarely a question at all, but it is a serious one under the circumstances we face today. Ignoring the integrity of the process, acting as if the ends always justify the means, would be a serious dereliction of the Senate's duty.

The President has the constitutional power to nominate judges, but he cannot appoint them without the advice and consent of the Senate. However, the Constitution does not tell either the President or the Senate how to exercise their powers. Deciding when and how to conduct the confirmation process is as valid an exercise of the Senate's advice-and-consent power as is taking a final confirmation vote at the end of that process.

Our late colleague Daniel Patrick Moynihan of New York once said that everyone is entitled to his own opinion but not his own facts. The majority leader recently offered a similar axiom when he said that ``no matter how many times you tell a falsehood, it is still false.'' When it comes to falsehoods, Democrats and their liberal allies are telling some real whoppers. For example, the minority leader has said the Senate's obligation to hold a hearing and a floor vote for President Obama's nominee is ``in the Constitution.'' He has made that claim in different forms on the Senate floor more than 40 times.

I understand Democrats want the Senate to confirm the President's nominee to the Scalia vacancy, but I cannot understand why they would put all their eggs in this completely fictional basket. As falsehoods go, this one is especially easy to expose because the Constitution obviously says no such thing. This is why the Washington Post Fact Checker called the Democrats' claim that the Constitution requires Senate consideration a politically convenient fairytale.

One of the reasons the Constitution says nothing about Judiciary Committee hearings is that the committee was not created until 29 years after the Constitution was written. In fact, the committee's practice of nominees regularly appearing in public hearings did not begin until the 1960s. During the 110th Congress, Chairman Patrick Leahy denied a hearing to dozens of President George W. Bush's judicial nominees. If the minority leader is right that the Constitution requires such a hearing, then Chairman Leahy was guilty of serially violating the Constitution.

Between 2003 and 2007, Senators Patrick Leahy, Charles Schumer, and Richard Durbin voted dozens of times to deny floor votes to Republican judicial nominees. So did Senators Hillary Clinton, Joseph Biden, and John Kerry. If the minority leader is right that the Constitution requires a floor vote on every nominee, then these Senators were guilty of deliberately attempting to violate the Constitution over and over again. So was the minority leader, himself, because he voted 25 times to deny the very floor votes that today he claims the Constitution requires.

The Constitution does not require committee hearings, and it does not require floor votes. The Constitution leaves to the Senate the judgment about when and how to conduct the confirmation process in each situation. Republicans have made that judgment by deciding that the confirmation process for filling the Scalia vacancy should be deferred until after the Presidential election season is over. We are following the recommendation of Vice President Joe Biden in 1992, when he chaired the Judiciary Committee. The circumstances compelling his recommendation to defer the confirmation process exist in equal or greater measure today.

Neither Democrats nor their leftwing allies have even attempted to argue that the 1992 Biden speech and his recommendation do not apply today. Instead, they have had three different reactions. First, some have simply dismissed it as not worth taking seriously. For example, President Obama responded by saying that ``we know Senators say stuff all the time.'' Others have complained that Republicans are misconstruing that speech or somehow taking it out of context. Just as anyone can test the minority leader's claim about the Constitution by reading the Constitution, however, they can test our discussion of Chairman Biden's 1992 speech by reading that speech--a rather long one indeed. The Washington Post read it, and reported this on February 23:

Biden's remarks were especially pointed, voluminous and relevant to the current situation. Embedded in the roughly 20,000 words he delivered on the Senate floor were rebuttals to virtually every point Democrats have brought forth . . . to argue for the consideration of Obama's nominee.

In his 1992 speech, Chairman Biden addressed how the confirmation process should be conducted in two different scenarios. First, he spoke about a Supreme Court vacancy in a Presidential election year. This was his recommendation:

It would be our pragmatic conclusion that once 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.

That was then-Senator Biden, chairman of the committee.

Second, Chairman Biden separately discussed how the confirmation process ``might be changed in the next administration, whether it is a Democrat or a Republican.'' He used the phrase ``the next administration'' no less than four times. This was his recommendation:

If the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support. . . . But if he does not, as is the President's right, then I will oppose his future nominees as is my right.

Two separate scenarios, two separate recommendations. The first scenario involved a Supreme Court vacancy in a Presidential year like 1992, and the recommendation involved the entire appointment process. Those circumstances and that recommendation apply fully today.

The second scenario Chairman Biden addressed involved the next administration, outside a Presidential election year, and his recommendation involved his personal support or opposition. Those circumstances and that recommendation do not apply today.

I understand Chairman Biden's recommendation for deferring the confirmation process in a Presidential election year is a very inconvenient truth for his party today. However, the only ones misconstruing that speech today are those trying to create confusion where none exists by conflating these two separate scenarios and recommendations.

The third reaction to Chairman Biden's 1992 speech is to pretend that he said something he simply did not say. For example, I have heard the claim that Chairman Biden would have gone forward with the confirmation process in 1992 if the President consulted the Senate before choosing a nominee. Let me once again quote the minority leader. It is pretty clear: ``No matter how many times you tell a falsehood, it is still false.'' Read the speech. Chairman Biden said no such thing.

I also want to comment on the President's recent remarks at the University of Chicago on the Scalia vacancy. For example, he said that ``there has not been a circumstance in which a Republican President's appointee did not get a hearing.'' Of course, the Senate's power of advice and consent applies across the board. If the Constitution requires hearings and floor votes for some nominees, it requires them for all nominees.

Last month, the Congressional Research Service confirmed in a new memo that during the 102nd Congress, when Democrats controlled the Senate, 52--52--Republican judicial nominees never even got a hearing. Vice President Biden chaired the committee and denied those hearings. In September 1992, the New York Times reported on page 1 that this was part of a deliberate strategy to keep judicial vacancies open in the hope that Bill Clinton would be elected.

The President also said there has not been a circumstance when a Republican President's nominee did not get a floor vote. Obviously, none of the dozens of nominees denied a hearing ever got a floor vote. The 52 Republican judicial nominees I just mentioned were not only denied a hearing, they were never confirmed at all. When the President served in this body, he voted to deny floor votes to multiple Republican judicial nominees. In fact, he has the distinction of being the only President ever to have voted to filibuster a Supreme Court nominee. The President was a Senator during the 110th Congress, when Chairman Leahy denied a hearing to dozens of Republican nominees. I could find no record that then-Senator Obama objected in any way that these nominees were being denied full consideration.

The President also said that the increasing use of the filibuster to defeat nominees is unacceptable. Democrats first used the filibuster to defeat a majority-supported judicial nominee in 2003. They are the ones who started this. They led nearly two dozens filibusters during the 108th Congress alone, preventing one appeals court nominee after another from being confirmed. President Obama should know this because, as I mentioned, he participated in and supported this filibuster campaign. The President should also know filibusters of judicial nominees declined by 65 percent after he took office in January 2009. That did not matter to Democrats who, in November of 2013, abolished the very filibusters they had used so aggressively.

The President also expressed concern that an increasingly partisan confirmation process would erode the judiciary's institutional integrity and that the American people would lose confidence that courts can fairly decide cases. I submit that the kind of judge a President advocates has a much bigger impact on the American people's view of the courts.

When he was a Senator, the President said judges decide cases based on their personal views, core concerns, and what is in their hearts. When he ran for President, he told Planned Parenthood that he would appoint judges who have empathy for certain groups. As President, he has nominated men and women who share this politicized, activist approach, believing that judges may make the Constitution conform to current social practices and evolving cultural norms. I think our fellow citizens can easily see that relying on personal empathy and personal concerns is the opposite of impartiality.

Since President Obama took office, the percentage of Americans disapproving of the way the Supreme Court is handling its job has risen by more than 20 points, and the percentage saying the Court is too liberal has risen steadily. Three-quarters of Americans now believe Supreme Court Justices decide cases based on their personal or political views, even though most Americans think they should not do so. The kind of judge President Obama and other liberals favor has much more to do with such trends than how we handle some procedural matters within the United States Senate.

Finally, I want to respond to the minority leader's recent attack on the Judiciary Committee and its distinguished chairman, Senator Grassley. The minority leader recently made the bizarre claim that Chairman Grassley ``forced his committee members to sign loyalty oaths.'' I first thought I must have heard wrong. That statement is completely detached from reality, and, I thought, no Senator would utter something so strange on the Senate floor, but there it is in the Congressional Record.

The minority leader may be referring to the letter dated February 23, signed by the Republican members of the Judiciary Committee affirming that there will be no hearing for any nominee from President Obama for the Scalia vacancy. The chairman did not force anyone to sign anything. It may come as a surprise to the minority leader, but we sincerely and freely came to the conclusion that the confirmation process should be deferred.

If the minority leader really wants to characterize Senators acting together as evidence of a ``loyalty oath,'' then I have another example for everyone to consider. When Democrats led 20 filibusters of President George W. Bush's judicial nominees during the 108th Congress, not a single Democrat voted even once to end debate--not one. Every one of the 868 total votes for those filibusters was cast by a Democrat, 20 of them by the minority leader himself. Now, that is loyalty.

I have yet to hear an argument from the other side regarding the Scalia vacancy that is not contradicted by present facts, by their own past actions or both. The Constitution assigns to this body the responsibility of advice and consent as an important check on the President's power to appoint. Advice and consent begins with a judgment about the best way to exercise that power in each situation. We have done so in different ways, at different times, under different circumstances.

Democrats and their leftwing allies are peddling the false claim that the Constitution requires the Senate to conduct the confirmation process now for this President's nominee to the Scalia vacancy. Of course, they are free to claim the Constitution requires today the very hearings and floor votes they denied to Republican nominees in the past. They may say those falsehoods as often as they wish, but they are still false.

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