I give a little bit about the agenda. I know were going to havet then several debates in this committee on the floor of the subject. Todays was through the meeting because i did not know we have been scheduled for 1130 i would like to finish but 1140. That where we all get a chance to vote. But anyway, we have several bills on the agenda for the 1st time as well as for nominees, three of those are right for a vote. Last week but moving those out of committee. We know we had difficulties between the two parties on that issue. I went over that. The we will hold over the thgislation on one nominee vote on the other three. It has been a lot of discussion about the Supreme Court vacancy last couple weeks. The record is clear about how the senate approachesup vacancies that arise. I spoke at length on the floor about these issues. Y i thought i would spend a few minutes reviewing where we are in dispelling some of the myths that i have heard repeated a number of times. The most appropriate place to begin is with chairman bidens famous speech. As we all know about 20,000 word speech the chairman wentch into great detail about the Supreme Court vacancies during a heated president ial the great deta now that we are familiar, i am not going to repeat them. Based on what i have been hearing there appears to be confusion about the matter, so would like to clear a fewew up. Ngs up. There has been some suggestion that somehow chairman biden did not mean some suggestio it has been suggested whenns he explained why the senate should not consider a Supreme Court nominee during a heated president ial Election Campaign somehow the actual words he used at a secret or completely different meaning. The actual words he used had a secret or completely different meaning. As a side, i would note this thankfully for all of us he spoke at length as he so often did when he was in the senate and was very clear. Chairman biden spoke at length, as he often did when in the senate, and he was very clear. For the benefit of my colleagues who have not heard it here is just in part. This isnt going to be as long as what you heard niasia ellis on the floor of the senate. Darn. Oh darn. Quote should a justice resign this summer and the president move to name a successor, actions occurring days before the Democratic Convention and weeks before the Republican Convention meets, a process that is already endowed n minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the president , nominee, or the senate itself. If that wasnt clear enough chairman biden continued. Mr. President , where the nation should be treated to a consideration of a constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties, from both ends of pennsylvania avenue. As a result, it is my view that if is a Supreme Court justice resigns tomorrow or within the next several weeks or at the end of the summer president bush should consider following the practice of the majority of his predecess predecessors and not name a nominee until after the election is complete. Chairman biden went on to say if the president didnt follow the practice of the majority of the predecessors and submitted nominee anyway than the senate shouldnt consider the nominee. Let me offer a couple observations. I said over the last few days some have tried their best to recast what chairman biden said in an attempt to give it a totally different meaning. Even the Vice President suggested what he said in 92 isnt what he meant. Instead he said it was about greater cooperation between the president and the senate. Chairman biden did talk about more cooperation. There is only one problem. He said cooperation should occur quote in the next administration end of quote. It was only after discussing why the president shouldnt send a nominee if a vacancy arose. And only after explaining why the senate shouldnt consider any such nominee regardless of how good a person is nominated that chairman biden turned to how the process should be changed in his view quote unquote in the next administration. Again, here is what he actually said quote let me start with the nominating process and how that process might be changed in the next Administration Whether it is democrat or republican. End of quote. Just so there wouldnt be any confusion, he repeated it two sentences later. Quote with this in mind, let me start with the nomination process and how that process might be changed in the next administration and how i would urge to change it as chairman of the Judiciary Committee were i to be chairman in the next administration. End of quote. Chairman biden was clear. Whatever you do all of the spin in the world isnt changing that fact. We have talked a lot about the biden rules but not as much about why he felt strongly that conducting hearings under these circumstances would be bad for the nominee, process and senate. It was because the process wouldnt be about constitutional interpretat interpretations and the proper rule of the court. Chairman biden said quote where the nation should be treated to a consideration of constitutional philosophy all it will get in such circumstances is partisan bickering and political posturing from both parties from both ends of pennsylvania avenue end of quote. Chairman biden was making the point that all of us know to be true. But only some of us are willing to admit considering a Supreme Court nomination in the middle of a president ial campaign would be all politics and no constitution. If there is any doubt that this was chairman bidens view look at how he described the problem in an interview a week before his famous speech in 92. Quote can you imagine dropping a nominee into that fight . Into that coldren in a president ial year . Quote whomever the nominee was, good, bad or indifferent, would become a victim. End of quote. I raise this in part because we are witnesses how raw politics are affecting process. Regardless of what some are willing to admit, Everybody Knows any nominee submitted in the middle of this president ial campaign isnt getting confirmed. The white house knows it, democrats, republicans, and even the White House Press is saying that. Why all of this outrage for a hearing and demand for a hearing Everybody Knows will not result in a nomination. The other side is looking to score as Many Political points as possible. That is why the minority leader has taken to the floor on a daily bases to attack me. We have seen that thing from him before around here. It is all about using this process to score political points. It is that simple. We are even seeing reports from the white house and the election process is guided by raw calculation and what they think will exert the most political pressure on me. This guided logic appears to be if they nominate someone who i, or other republicans supported, for lower court, it will conclude it is a good idea to drop that nominee and what chairman biden called the coldron of a hearing during a heated president ial campaign. People conveniently forget that judge borke was confirmed to the washington, d. C. Circuit but that was before the other side viciously attacked and smeared him when he waw nominated to the Supreme Court. It is being suggested if the white house lects a judge from iowa i would try to convince my colleagues it a good idea to hold a hearing. We have been upfront and clear but in case there is any confusion over whether this obvious political ploy would work i think we need to be crystal clear. It will not work. We are not going to drop any nominee into an Election Year cauldron and i am not going to let it happen to the good people of iowa. Let me touch on a few more points before turning to the Ranking Member. Some of the arguments we have heard are so absurd they dont deserve rebuttal. But my friends seem to be under the impression if we repeat something enough it will become true. I heard it said the kennedy episode lands support to the notion the senate should consider a nomination during the middle of a president ial campaign. The argument is that Justice Kennedy was nominated in 87 and confirmed in 88 this somehow disproves chairman bidens argument. The only reason that seat was still vacant in early 98 is because judge burke was treated to an unprecedented and shameful Smear Campaign in 87. Those of us who were here remember it very well. That brings me to another related point. It has been suggesting the democrats here in 87 and 91 and chairman biden in particular should be applauded for how they handled the burke and thomas nominations. I will set aside the fact neither of these nominations occurred during a heated president ial campaign. The argument is judge burke and Justice Thomas were treated to a fair process even though they didnt have the support of the majority in the committee they were reported to the floor. I am not going to negate those nominations but where was here for judge burke and Justice Thomas and i saw what happened to both of them. I saw what happened to their records, to their repatiutationd the impact it had on their families. If anyone wants to argue those individuals were treated to a fair process you are free to make that argument but to this senator it would be laughable if not so sad. There wasnt a vacancy when chairman biden took to the floor in 92 but consider this. Chairman biden spoke on the floor that day before the end of the term and that is the day when justice often announce their retirement. It is true there was no vacancy at the time. But the chairman of the senate ju Judiciary Committee went to the floor of the senate and put the public, all nine justice, and the president of the United States on notice. If any justice was considering retirement they should know that the senate was not going to consider any replacement consistent with past practices. Based on what we heard over the last few days you would think those expressing outrage today would have rose to the floor to express their disagreement with chairman biden in 92 but for some reason that didnt happen. Not a single democrat went to the floor that day, or the days and weeks that followed, to stand up and say no, mr. Chairman, you have the history wrong. Not one. Not one democrat went to the floor, stood up and said no, mr. Chairman, there may be the senates history and there may be very good reason for it but i think we should press ahead with an Election Year nomination anyway. Not one. Not a single democrat went before and stood up and said no, mr. Chairman, i disagree. We havent located any newspaper editorials taking him to task either. So much for fairness between then and now. So we should keep in mind when we hear all of this outrage today keep that in mind. Let me make one final point. If this particular argument were not so transparently absurd it would be worthy of more debate. It is the under that because republican senators met to discuss the issue that somehow we were not being upfront and open. We could get into all of the secret meetings that the other side held before they walked into the the chamber on november 21st, 2013 and invoked the Nuclear Option but i dont think that would be a constructive debate. Everyone in this room knows we meet to discuss importance matters and the reason i know everyone knows it is because i met with each one of you on one issue or another and you didnt invite the press or public. I met with every republican when i became chairman and offered to do that with every democrat and i did meet with most of you on the other side of the aisle so i can learn your priorities and what each one of you wanted to see accomplish. I have cosponsored legislation when you even when you led the battle has senator durbin has done on sentencing reform. That is how we can learn where we can agree, where we cant, and where woe might be able to Work Together. That is how we get things done. That is how you lead. The bottom line is this we didnt play games, we didnt hide the ball, we made it clear up front to the president , Senate Democrats and the president what we wanted to do. We know others would make this as political as possible. It doesnt matter because this is the right thing to do. Senator leahy. Thank you, mr. Chairman. I will not go through all of the things i disagree of the recounting of the facts because we would be here too long and you and i have been friends for too long. I know during Election Year nominees in the last your of president reagans is his mike on . Turn your mike on. It is on. I dont know if is carrying. In the last year of president reagans term, the democrats were in charge and it was president ial Election Year and he was going to be leaving the presidency and we voted on a Supreme Court nominee of president reagan. Talk about partisanship. Every single democrat voted for president reagans nominee in a president ial Election Year. I am sorry that you feel that somehow this attention is directed at you and this is about you. It is not. It is about the constitution which is more important than you, me, or anybody else in the room. The president has a constitutionconstitutio constitutional obligation to nominate when there is a vacancy in the Supreme Court. We have a constitutional is this not working . Is that better . Okay. As i said as i mentioned earlier, when we talk about what happens in president ial Election Years, the democrats were in control of the senate unprecedented reagans last year in office, president ial Election Year, every single democrat voted for his nominee to the Supreme Court. I know my good friend from iowa said mow this effort is directed at him. I would say it is really not about him or any one of us. It is about the constitution which is a lot more important than any one of us. The oath that the president took to uphold the constitution, which requires him to nominate somebody when there is a vacancy, and requires us to exercise our advice and consent in voting yes or no. But we cannot sit here in close door meetings and agree with just part of the committee while we will vote maybe. The American People want us to do our job. We are paid to do our job. Voting maybe is not an option. Senator grassley, we have been friends for a long time. I hope while we disagree we will continue to Work Together in the legislation and oversight matters as well as nominations and he is correct. We have sponsored a lot of leahygrassley and grassleyleahy. We try to do that in the best tradition of the senate. He is a man who embodies those traditions and the courtesy of this body and something that is unfortunately sometimes lacking. But those of us who have been here for a while appreciate this. I was upset when it was recommended the next Supreme Court nominee will not receive any consideration this year. There was no unanimous recommendation. This is our First Business meeting to consider anything since the untimely passing of Justice Scalia. The first member of congress or anybody who said anything publically about Justice Scalias passing was the republican leader who said there will be no replacement. A lot of us would have like to at least had the memorial and the burial of the justice before that talk started. The committee hasnt discussed how we will proceed. But the majority can determine what they want to do it is not unanimous in contrast to what thepub the republicans say. It was not. That is blatantly false. Unanimous requires all of us and we were not invited to that closed door meeting. I want to with you as it has been the case on all Supreme Court nominations. I know you want to conduct the work fairly and i hope you will return to the practice in working together. We may disagree with each other but the tradition has always been that the chair and the Ranking Member, and i have been both chair and Ranking Member, on these kind of major decisions in this Committee Meet together and talk about it first. It is important we try to Work Together because we are not at the end of the year. We will have many matters to grapple with over the next nine months. You and i were elected to serve for six years. Not five and a quarter. We are at the five and quarter mark. We were elected by the people of iowa and vermont to serve for six years. I intend to work every day until the end of my term. Concerns about shutting down the process of the next Supreme Court nominee some senators are pivoting complaining about how lower Court Nominees have been treated in the past. We can go back and forth on this for days. The last two years of president bushs term in office, when we took over, we confirmed 68 of his judges. I think you have allowed 16. But it could be dispute this committee has always treated Supreme Court nominees differently than other nominees. Since i have served in the senate and i have served here for almost 42 years. The Senate Judiciary always head hearing on the pneumy pne nominees. I am glad to see senator hatch here. When i became chairman of his committee, i and senator hatch the ranking mem, talked about how this would continue member i am not saying would change but continued to consider Supreme Court nominees. In a letter to all senators, senator hatch and i wrote the practice had been to report Supreme Court nominees to the senate once the committee completed its consideration. This has been true even in cases where the Supreme Court nominee was opposed by the majority of the Senate Judiciary. Even in a case where republicans and democrats voted against the nominee it was said it should be considered by the full senator. The republican leader at the time, senator lot, read our letter in the congressional record to ensure it was available for all americans and every single republican and democrat didnt disagree showing the long understanding of the committee to an open fair process to Supreme Court nominee. This has been the committees practice regardless of who held the gavel and who is in the white house. Last week a distinguished group of scholars wrote the constitution gives the senate every right to deny conformation to a president ial nomination. Denial should come after the senate deliberates over the nomination which includes hearings the Senate Judiciary and anything less is a breach of the senates best practices and tradition for much of our nations history. I ask unanimous consent this scholar letter be included in the record. Without objection, so order. I love the senate. I love the traditions and i love the way senate, not buzz i am a senator, but because i believe the senate could be, should be and at times has been the conscious of the nation. Every one of us takes an oath to uphold the constitution so help me god. So the public conformation hearing the senate has never denied a Supreme Court nominee a hearing and a vote. You cited comments from Vice President biden but the fact is we have taken action every time there has been a Supreme Court vacancy. I can read all kinds of things from debates but i would say this the actions continue to speak louder than any words. Our actions speak louder than any words and our actions show we have always, we have always gotten here hearings and had votes when there is a Supreme Court vacancy. That is what senator hatch and i said in our letter. J the importance of the Supreme Court cant be understated. Take a deep breath, return taking things one step at a time, and return to how this committee has long treated Supreme Court nominees no matter which president nominated them. We have the president will nominate soon a person. He will fulfill his duty that he swore to do, so help me god, and now after he does, i would remind everybody the consideration of his Supreme Court nominee as a constitutional duty of each senator. I hope they are all going to do our job here. The one we took the oath of so help me god that we will do. Thank you, mr. Chairman. Senator hatch . Thank you, mr. Chairman. This is an interesting hearing. The question regarding the vacancy of the death of Justice Antonin Scalia is when not whether a nominee should be considers. The democrats say the constitution shows a prompt vote whenever the president choses a nominee. Anything else they say would not be doing our job. Rarely have words been so misleading. The nomination power is given to the president and the advice is given to the senate. The constitution doesnt tell the senate how to exercise its power. The senate must decide in each situation and has done so in different ways, at different times, under different circumstances. The democrats know this is true. During the 102nd congress, then chairman joe biden, denied a hearing to dozens of nominees and recommended if a Supreme Court vacancy occurred the entire appointment process should be deferred until after the election season was over. Between 20032007 democrats on and off this committee voted dozens of time to deny any conformation vote to republican judicial nominees. In 2005 harry reid said the constitution does not require the senate to vote on a president s nominee. When he chaired the committee under a republican president , senator leahy denied a hearing to dozens of nominees who were never confirmed. Senator Charles Shumer stopped this. Democrats proposed filibusters under president clinton, supported them under president bush and abolished them under president obama. Democrats had their reasons for these statements and actions and i am sure each time they believed their positions in these matters was legitimate. Those statements and actions are not compatible with the position that the congress requires prompt hearings and floor votes for all nominees. If what democrats say today is true, Vice President biden in 1992 advocated violating the constitution. The minority leader was flat wrong if that is the case. Democrats liberal allies equally confused. We received a letter claiming the constitution requires quote timely hearings and votes unquote. Some of these same groups publically and forcefully advocated denying floor votes to republicans. We received letters it is the quote senates constitutional duty to hold a hearing and timely vote on the scalia vacancy. I am well familiar with law professors in this country and they make a lot of different claims. I am not aware any of those know the constitution doesnt require the senate to vote on a president s nominee. Did any of these professors complain with so many other senators voted over and over to prevent any converimation votes firearmly or otherwise for republican judicial nominees . Of course they didnt. This is a political stunt that is misleading the public. The constitution has nothing whatsoever to do with it. Mr. Chairman, neither of the constitution, nor the other parties political priorities, dictate how the president or the senate exercise their respective powers in the judicial appointment process. I believe there are other reasons for deferring the process for the scalia vacancy. I would require those saying a prompt hearing is required that this committee wasnt even made until 29 years after the constitution was drafted. Enough absurd claims about what the constitution plainly does not require. If my democratic colleagues really want to argue that republicans today should not have the same ability to structure the conformation process as democrats did in the majority they should make that case. They know the American People will not except such a position. Mr. Chairman, i am concerned about this because it just seems to me this is a president ial election mess. I have never seen it worse. I have never seen the country more at odds or on edge over a president ial nomination process. We all know that whoever picks the next nominee for the Supreme Court that it is going to be a big battle no matter what happens. That is the way it looks to me and that is based only on 40 years in the senate. So all i can say is that we have every right to determine that this is not the time to bring up a nominee for the Supreme Court of the United States of america and we have every good reason to not do it under these circumstances. I hope we can Work Together in the future and this resolves itself as it should. Senator fienstein . Thank you very much, mr. Chairman. Mr. Chairman, my words are said this morning with considerable disappoi disappointment. I have Great Respect for you, mr. Chairman, and most of my colleagues on the other side so let me begin with some history. [laughter] some of those on the other side would say the same thing about their side. [laughing] let me begin with some history. No Supreme Court seat has been kept vacant by senate in action for over a year since the civil war. I think it is important to realize what that means in terms of history and a four to four court. First some history. 155 years ago last week, march 4, 1861, president lincoln delivered his first inaugural address here at the capitol building. Lincoln had won the election in november. As we all know, the nation was about to enter years of brutal civil war. Lincoln closed his inaugural by appealing to avoid the bitter conflict that was to come. He said and i quote we are not enemies but friends. We must not be enemies. Though passion may have been strained, it must not break our bond of affection. Then he appealed to the better angels of the nation. The first battle of bull run happened about 32 miles from here and there was concern washington itself was at risk. A during all of this there was a vacancy on the Supreme Court. Peter daniel died in 1860 and president bucannon spent up a nomination in 1861 three months after lincolns election and only a month before lincolns inauguration. Multiple states had already voted to secede by that point. The nominee, jeremiah black was put up. President lincoln nominated samuel miller, an iowa resident to fulfill the seat and he was proved. That was the last time the Supreme Court had a vacancy of more than a year. It took our nation tearing apart and at war with itself for a senate to keep the Supreme Court seat vacant for more than a year. That was the last time it happened. No Supreme Court seat has been kept vacant by a senate in action for over a year during that time. What is happening today is contrary to our committees practices even in divided government and Election Years. Also, no nominee for Supreme Court vacancy has been denied a hearing since 1916 when the Committee First started Holding Hearings on nominations. That is 100 years of a precedent. We have confirmed nominees during president ial Election Years. Most recently a Democratic Senate confirmed Justice Kennedy, a republican, in the final year of reagans term. 14 Supreme Court nominees in fact have been confirmed during president ial Election Years. Clerance thomas did not receive a majority vote of support in this committee but still was confirmed by a Democratic Senate in october of 1991 after the president ial Election Campaign had gun begun. I remember it because it was during my First Campaign for this body. In 2001, as senator leahy has said, senator hatch and senator leahy recognized our longstanding practice to give nominees fair consideration; a vote in the committee and a vote on the floor. This was done in the joint letter that senator leahy referred to and it was entered in the congressional record for alltime. That was an agreement made in a Democratic Senate when a republican, george w bush, was in the white house. It is this body and committees job to look carefully at the nominee and give that person a fair hearing and a vote. The effect of this obstruction is like to leave the court with only eight members over two terms of that court if you actually think about the timing. Now what does that mean . Out of 8,000 petition the court gets for review a year the court takes about 80. It choses those primarily where there is a disagreement among lower courts about important federal issues. Over two years we are talking about 160 cases and 16,000 requests for review that are potentially impacted. Not to mention emergency requests that do not have the luxury of time. Now, of course the court isnt going to deadlock in every case. But the potential for deadlock is greatly increased when the court has only eight members and the Court Previously because divided 54 frequently. Tie votes in the Supreme Court do not settle the dispute heard by the court and they dont create precedent for other cases. This means uncertainty in the law continues. And the law varies around the country when it could have been settled. This is why as president reagan said before Justice Kennedy was confirmed, and i quote, every day that passes with the Supreme Court below full strength impairs the peoples business in that crucially important body end quote. Supreme Court Justice themselves including scalia and renquist have noted the dangers of an evenly divided court. Justice scalia decided not to recuse himself in 2004 saying if he did quote the court proceeds with eight justices raising the possibility that by reason of a tie vote it will find itself unable to resolve the significant legal issue presented by the case end quote. That should be sobering. Scalia quoted the courts recuseal policy signed by six republican appointees stating that quote even one unnecessary recuseal impairs the functioning of the court. We have gone through a lot of tie votes. We have those. When you go through them you see the impact of a 44 divided court. Let me give you just one example. I picked it because it involves the ninth circuit. In 2008, the ninth circuit decided a case called the United States versus florisand the question was whether a person born abroad at an an unwed u. S. Citizen was a citizen of the United States. The law differed depending on whether the citizen parent was the mother or the father. Here is how the ninth described the issue quote if a United States citizen father had a child out of wedlock abroad with a nonUnited States citizen mother the father must have resided in the United States for five years after his 14th birthday to confer citizenship on its child. But a United States citizen mother had to reside in the United States for a continuous period of only one year prior to the childs birth to pass on citizenship. It is this difference that florez claims makes anacl classification on the base of gender and age end quote. The ninth concluded this treatment was permissable under it constitution. The Supreme Court accepted the review in the case but in 2010 it deadlocked 44 because Justice Kagen was recused. That left the ninths decision in place in california, arizona, and other states in the ninth but did not set a nationwide precedent. Five years later in 2015, the Second Circuit came out the opposite way. Here is what the Second Circuit found it is argued this statutory theme violates the fifth amendme fifth amendment guarantee of equal protection and onewed fathers should receive the benefits unwed mothers receive. We agree and believe our client derived citizenship at birth through his father. A tie vote can have a real significance. Here is the bottom line. In the situation presented by this case today, children in one circu circuit may not be citizens but in another circuit they would be. That is not the fault of the child but how the law treats the parents of different genders and it makes no sense when the issue could have been resolved in 2010. Let me conclude by saying the path republicans have put us on goes against more than a century of history. It is going to impair the functioning of the Supreme Court. And no doubt members are going to point that out. I believe that it is going to have more importantly real impact on people and real businesses in real cases both this year. We all know the other side of aisle has been trying for years to deny this president the right of appointment whether it be for ambassadors, his cabinet, or other top level staff appointments. But this is really something different. So i am appealing to the better angelz of your nature. When there is nominee, do as we have done in the past. Give the nominee careful consideration. Meet the with nominee. Ask the nominee questions. Hold a hearing. And then hold a vote. Both here and on the floor. Vote no if you want but lets have the fair process that is our tradition. That is our job and we should do it. Thank you, senator fienstein. Just to fill in on history in 19691970 the court had 452 days of vacancy and in 1945 Justice Jackson took a oneyear leave of absence to serve as chief prosecutor at the war crimes trial. The sky didnt fall and justice aleto said quote unquote the court would be able to deal with only eight members. Senator sessions. Thank you, mr. Chairman, and your leadership. I would say to colleagues even the new republican colleagues. There is a history here and the democrats dont have the principle history. All of us have dirty hands and no one is perfect in how we handled judicial conformations. I remember when clinton was president a nominee came up in california, trent lock filled a cloture on the nomination to move it forward, and i voted for cloture. And that is the way because we didnt believe in filibuster. It was only after president bush won and the republicans have a slim majority in the senate that the democrats held those nominees system. He nominated 11 and two were renominations president clinton put up that were democrats and confirmed those two quickly and then everybody else was blocked. It went what . Two or three years . When why got the majority back it was filibustered and he went on and on and on until finally the American People got frustrated with it. They wanted judges who would follow the law. Good judges they could trust and believe these were. Senator graham and others and the gang of 14 wasnt it . They cut this deal and said well, okay, we will not filibuster anymore except in extraordinary circumstances. We can vote no but not filibuster except in extreme cases. I said i will adopt that. I didnt previously believe in filibuster but i said i will only use it in a restrained way where i feel it is important. I tried to adhere to that and i think republicans have. We get back in the majority and they are unhappy the republican majority was not willing to fill judges for the washington, d. C. Circuit that had no need whatsoever. They had the lowest case load by far in any court in america and we said we will not affirm them. Senator Instagram Graham blocked one from president bush. We had it sent to the ninth circumstance because they had a shortage. Now they say you cannot filibuster. All of us are less than perfe perfectly consistent. First and foremost the republicans have been principle and responsible in handling nominees than the democrats colleagues. They have not hesitated to change any rule or principle to advance the immediate agenda they have. Now, somebody i just saw a poll in the wall street journal and 62 of people say the democrats would do the same thing we are doing in this circumstance. Late in the campaign year, no nominee having been put forward to this date, and they say the democrats wouldnt move the nominees either. Well of course that is correct. If you took a poll of all senators and they would tell you the truth it would be hundred percent in the senate. The justices are upset. So i am fully aware ofmy colleague is going to make a political. This is not an unreasonable position. They have to go back to 1888 for somebody under the same circumstances was confirmed late in the session. Mr. Chairman, you know these rules, the history of this. Senator hatch knows the rules. He has chaired this Committee Many years. I am totally convinced that this is what the democrats would do if they were in the situation. This is what you would expect the senate to do. That the American People have a voice and who will replace Justice Scalia next year. Thank you, mr. Chairman. I would like to thank you for having his remarks, allowing these remarks. I want to thank the Ranking Member from vermont and associate myself with his and senator feinsteins outstanding presentation. I appreciate also the chairman moving forward with nominees as well as two bills before us. Was that i care deeply about and its a pleasure to work with you on these important pieces of legislation. I appreciate the partnership on those efforts. I have to say, the work of this committee and this congress will be shamefully incomplete if this committee refuses to do that most important job of weighing the Supreme Court nomination. There were nomination. There were given a job to do the constitution of the United States, a job the American People want us to do, and the chairman of this committee is saying for the next year the Judiciary Committee will not do its job. Our republican colleagues claim this is not about politics of the fact that they dont like this president. The American People ought to have a say in deciding who will appoint the next justice. They say let the people decide. Well, the people have decided. If you asked the American People they will tell you. The data is overwhelming. The cnn poll last week found 58 percent of americans want to see the president nominates someone to the court this year and have the personality hearing. Just yesterday wall street journal largely liberal journal on the 55 percent of registered voters disapprove the republican decision to block a court nominee, sight unseen. Washington post abc poll 63 say the senate should hold hearings. And these numbers hold steady in red states, blue states comparable states. The tpp poll found clear majorities in iowa, arizona, missouri, North Carolina all favor the filling a vacancy. I say to my colleagues, yes, the people have decided kind they are saying to the republican majority, do your job. The American People are speaking loud and clear and saying to the republicans just that, that we have a constitutional responsibility and it is up to this committed to do the job. Its a shame. Even the chairman, man of integrity, respect him. But the chairman admitted this was not the consensus view. Last week the chairman indicated that are members i would like to see us hold hearings. I suspect that is still the case. As any chairman ought come i went toi went to the members of my committee who all agree with me for different reasons. Some had reluctance, but all signed letter declaring there would be no hearings. So bottom line, some had reluctance. Add a great deal of respect. I also believe there are some in this room who want to debate. Senator tillis said he likes a good scrap. After the president makes the nomination. We have had in the past. Lets not forget the last four justices who were nominated gum bipartisan support to get on this court. It is not despite the divisions we have. They are able to have serious, serious hearings often with bipartisan way. I want to have one more thing. We just noticed for hearing this committee the debate on the constitutional amendment requiring a budget i am happy to have it. I can ignore that this proposed hearing is a convenient political cover for republicans backtracking out the promise to do aa budget. Im happy to have a debate, but i must say comeau before we start trying to edit the constitution dont you think we ought to follow it . This committee comeau one of the original 11 Standing Committees and the senate holds a profound and story place in the history of the senate. It has resisted the territorial claims, the wants and winds of centimeters, even presence of the same party. The waves of politics and pressure or broken against the wall. The senate Judiciary Committee time and time again always an ignoble fashion but nonetheless this committee and the senators in this room have a special obligation to consider how nice it. I once since this committee began Holding Hearings on Supreme Court nominees century ago has the committee refused to report nominates of the floor for consideration of all 100 senators. This knocks it back and forth. They are on both sides. Let me repeat, not once since this committee began Holding Hearings on Supreme Court nominees century ago has the committee refused to report a nominee to the floor for consideration of all 100 sentence. I know theanother distinguished chairman from iowa holds the same reverence that i do for the reputation of this against committee. And so i ask is you walk in lockstep with the majority leader and republican president ial candidates to the detriment of this Committee Constitutional duty that we as senators offer. There was a reference. Manipulated depending on who is asking the question. Theyre supposed to make decisions based on what is right. I think that the people on the other side of the aisle right now while paula 61 percent of americans want to consider immigration lawyer out to be debated. The other side is not letting that affect immigration politics. I can tell you one person Hillary Clinton. She was 2121 points ahead of bernie in michigan lost. The moral high ground is a shaky place to be. I wont go there. I will say if you live long enough it is fascinating. People who i think. I like you all very much. We are headed to changing the rules in a permanent fashion. Filibustered and mass. One of the gang of 1414 the said lets not go down that road. Only three of us are left and we found a way to confirm most. Halfthey had the crap beat out of me at home. When i told people i thought consequences can win elections and we dont want to change the 60 vote rule knownobody wanted to here that until we lost. And the very same people and beating the crap out of me know. I would work with the other side. Here is what is going to happen. Just in case we lose Hillary Clinton will present. Unless bernie keeps doing well Something Else happens i dont know about. Im telling everyone she will pick someone more liberal. Goinggoing to vote for that person if i think they are qualified. The president deserves the right to pick judges. Why not feel comfortable doing this . The current Vice President in 1992 argued for we are doing, the sitting president filibustered to republican Supreme Court justices. I said is this the same guy the filibuster . The last year of the lameduck president. s desk is not to confirm or take up a selection of president obama. If the vacancy occurs guess what we use their words. There is a republican president and a vacancy occurs in the last year the 1st term he can say Lindsey Graham said that the next president , whoever it might be, make that nomination and you can use my words against me. In the last year at least of the lameduck a year term pilot say will be a fouryear term you will not see the vacancy of the Supreme Court based on what we are doing here today. When you change the rules about appellate judges and District Court judges to get your way i thought it was an abuse of battle. You have made the caucuses and republican and democratic caucuses no not have to reach across the aisle to get input from us so we could input from you. Youre going to take the most hard as people we can find in barrel somebody in the conference to vote against that person. Most liberal members of the caucus because you dont need to have to reach across the. Over time the judiciary is going to be more ideologically driven is the process the senate now is not require you. I will fight for think they are truly in the job. So, this is where we find ourselves. Im son but the fact of the senate is going down the road we have gone. If we lose this election much is the same. If its Hillary Clinton or Bernie Sanders send over a qualified nominee. I think thats what the constitution envisioned. The samesenate is always done what it thought was best. But the time we are and what is best seems to be by politics with judges that you started a new game. There will come a day we have a republican or democratic president and they will change the rules for the spirit court and will get frustrated. It is just a matter of time before the Senate Becomes the house when it comes to judges command i really hate that. Let me ask all the members my said we probably ought to stop at 1140 to vote. And if there is a desire to do what is on the agenda why keep that in mind. Thank you very much. I have served on this committee for 18 years. The senate Judiciary Committee is one of the major committees of the senate and it has played all continue to play an Important Role in the history of our country. Country. They are now faced with an historic decision, and i hope they get it right. I was at my friend acknowledging the observation mile include some graham. Say that if we make a mistake today and we make it again in the future does not give me any comfortable. If there is one thing that we pay a lot of money for on both sides of the political equation, is the disappointment and anger people feel about us that congress. Maybe we do two points better as democrats but i dont take any comfort in that. The question is we will to either confirm those suspicions but changed. And we have a chance right here and now. Let me say at the outset, my neighbor in iowa has been my fellow traveler for over 30 years. We spent more time on airplanes together and at airports than most other members have come to know one another under those circumstances. Difficult to work with one another on a lot of issues. We were working on important issues together. I am hopeful we can produce something bipartisan again incorporation. I also think that brings us together is really kind of this feeling that there is a minister and to turn things, even if we disagree we can be respectful another and try to find common ground. I think that is one of the issues in this debate about the filling of the vacancy in the Supreme Court. I think there is just a basic feeling of fairness where we live that flat and fertile part of america where you can see a long way in any direction is just a feeling of fairness to your neighbors, fairness to those who watch her friends. That should dictate what we try to achieve. Ill question of the end of the day it will still be 54 republicans and 46 democrats voting on a nominee sympathizers and if the nominee is suspect are controversial that may not be in. For the 1st time in the history of our country the senate Judiciary Committee will not offer hearing. And then statement made by one of my friends of the committee warning people who are being asked to consider being aa nominee, be prepared. You will be treated like a pinata. We know what that is about. Toby this thing to a pulp. I hate to think this process is being likened to a pinata contest. He is trying to protect his potential nominee. Of course ask the important questions. The severe 1st time in the history of the United States and the city senate will deny hearing that is hard to explain. We can argue about polls. Even among republicans is 46 in favor of a hearing they get the basic fairness of the question. Their exists for this committee the creation of the chairmans staff away website i would like to read from the website of our committee when a vacancy occurs nominate aa person to fill a vacancy. The nomination is referred to the u. S. Senate where the senate Judiciary Committee holds a hearing for the nominee provides testimony in response to questions referring for consideration. This is our website. This is a practice of this committee. And yet the senators on this committee areand direct contradiction of what we have announced to be our policy. Mr. Chairman, i know this is unusual, but i would like to make a motion. Ask unanimous consent very briefly and directly assess the sense of the senate Judiciary Committee then redirected from the website comeau what a vacancy occurs the president was given the authority under article two the nomination is referred to the u. S. Senate for the senate Judiciary Committee holds a hearing for the nominee provides testimony in response to questions from members of the panel. Traditionally the Committee Refers the nomination to the full senate for consideration. I ask unanimous consent that this is our stated policy. I would like the objection noted for the record. Mr. Chairman. If you did not yield the floor. I willi will conclude quickly. It is time to change your website. I yield the floor. Thank you, mr. Chairman. I cant help but think, flipflops for an olympic sport there might be some gold medals awarded. It is really breathtaking. I do believe the debate were having here today is an important one and we should welcome it. This is important to have this debate in public and visible to the American People because the question is simple should the senate, the majority of his members were elected as a check of a president with little regard for congress or the restraints placed upon his office in from the Supreme Court nominee of the president in the waning months of his office when that nominee would like they change the ideological balance of the Supreme Court of the United States for decades. Justice scalia served for 30 years. But clearly the stakes are high and that is why we decided the American People should have their voice heard. The senate has clear Constitutional Authority to demand this, and my republican colleagues and i do intend to do the job for elected to do on the peoples behalf. It is fair to say our friends across the aisle dont like this idea. But they are feigning a lot of outrage. We know they would do exactly the same the shoe on the other foot. We know that because they have told us. We talked about one now Vice President biden said years ago. You dont have to go back that far to find the comments from the senior senator from new york who said 18 months before president george w. Bush left office that i will recommend to my colleagues we should not confirm Supreme Court justice except in extraordinary circumstances. We should reverse the presumption and have a presumption against confirmation and then there is senator reed, the former majority leader how the minority stated this, the duties of the senate are set forth in the constitution. Nowhere in that document doesnt say the senate has a duty to give president ial appointees about. While i find myself disagreeing often he is absolutely correct. There is no duty. The pres. Can make a nomination and and the senate can grant or withhold consent. And then it was noted that the president himself when he was the United States senator filibustered then Justice Samuel alito. The facts are, democratic colleagues revocable book and simple justice requires that they abide by. Her friends claim people should choose who makes the selection. That is the tradition. But more to the point that is a rich criticism. Where was the precedent for turning Supreme Court nominations in the scorchedearth political battles as they did with eminently qualified nominees what was the precedent for that . There was none. And where was the precedent for the serial filibusters of appellate judges in the Bush Administration that have already been commented on . There is no precedent comeau was no precedent for that. We rewrote the rulebook. And where was the president last congress and democrats change the senate rules by breaking the rules, something we call the Nuclear Option around here to deprive the republicans of the same judicial filibuster the democrats revised and employed with abandon in order to do what, to pack the district of Columbia Court of appeals. The 2nd most Important Court in the nation from which many ultimate Supreme Court justices are nominated there was no precedent for the democrats did. Friends of clearly established new rules for republican president s and the time and time again devise new schemes when they were in control. Well, every action has a reaction. That is physics. And in this case it is simple justice. They have made the bed, so lets dispense with the outrage. They can choose to extend eight years of anemic Economic Growth national weakness and disdain for the constitution that made our country great. They can choose a different direction for the better. I hope they do, but the choice is theirs. The Supreme Court will have a central role in determining path we take and the people should have a voice in a decision. Thank you, mr. Chairman. Senator. Thank you very much. Im just going to step back a little on this. I thought many times about what i would do if we were in charge of the senate and we had a republican president and i think as a lawyer and talked my law professors, i would feel we have an obligation and that is what i would do because when you look at that plain language as we all know the President Shall nominate someone, the senate shall advise and consent and put together a form of law professors about a week or so ago and one of them from the university of columbia law schools and the framers did not contemplate, the framers did not contemplate the use of the senates advise and consent powers solely around the clock on president ial appointment. As Alexander Hamilton speculated rejection of a nominee could only be made to make place for another nomination by the president. And i understand people might not vote for whoever the president nominates. It has been my view he has put up qualified people, but the constitution and its language did not anticipate how we would sit there and wait. And in fact when you look at the history as well as we know in the last hundred 35 years the president has been refused to vote for an open seat. The senate has confirmed more than a dozen Supreme Court justices in president ial Election Years including five, you have to go back to the civil war to find a time when the senate did not do its job in the senate did not move on nominee for over a year through the depression, worlddepression, world war i, world war ii, the vietnam war, times are great tumbled , gray civil war, civil rights protest, you have to go back a long time. And so that is why i concluded if i were in your shoes i would have allowed this hearing to go through. The other piece of it that goes beyond the things i would most. 2, the wording of the constitution which is always important, the fact that we have history as an argument that i think is drawn in favor of allowing a hearing to go forward, but we also have how we function as a senate command i havei have been proud of the way our Judiciary Committee has handled nominees. People go back and forth about how many of gotten done, but the nominees are put forward have gotten a fair hearing. I think back to the two Supreme Court nominations. We had republican senators who took part in that, not that many of them voted. I remember Lindsey Grahams line. This is not the nominee i would have put up that way this person is qualified. And i remember the hearings as well people have strong views on either side of the process worked. We have a process, hearing. The nominee went to the floor. The process we could be proud of. You look at the existing justices, longest in any of them went from the beginning of being nominated to the end of the confirmation 99 days, clarence thomas. And so you have a history of those on the court now, the history of our country, the senates role is to be funding the court, not to dictate the decisions but to fund the court and to advise and consent on the president s nominees. They have to do our job. And so it was a shock when the justice died, many of my friends are friends of his even though they did not necessarily have the same view, but it happened. The question is how we respond. I say,. I say, do our job and follow the law and follow the constitution and the history that backs it up. I apologize. I have a prior responsibility. I would like my remarks entered into the record. They will be. Thank you for holding this important discussion. I think it is really instructive and somewhat ironic to here all of these arguments from the left that the constitution requires, demands a hearing and about and a certain timeframe. Most folks, many are clearly making that argument. I think it is sort of ironic given that we are debating a vacancy created by Justice Scalias death because he thought is 1st and foremost read the words. Dont just make it up as you go along. Dont use these big tools to get to whatever and you want. And it is instructive because the left wants a new Supreme Court justice who is going to not read the words and will make it up as they go along and get to a preordained stop point however they can get there. But again words matter and the constitution and the other relevant words, in this case the senate rules are clear and do not require hearing or action on any particular timeframe. As you know, the constitution says simply an article to section two cause to for the president ial nomination by and with the advice and consent of the senate shall appoint ambassadors, judges of the Supreme Court and all other offices whose appointments are not here and otherwise provided for. That is what it says pure and simple. Does not talk about any timeframe, does not talk about any required action. And the other text which governs of the senate rules. The constitution makes it clear the senate can establish rules to follow within the bounds of the constitution. In the senate rules, the onlyrules, the only thing they have to say about the timing of action is one of the wont occur, it shall not be put on the same thing was thefamous the nomination is received on the day on which it may be reported by committee and less by unanimous consent. And then theres 31. 6 which is very relevant instructive nominations are confirmed are rejected during the session i wish they are made , shall not be acted upon in any succeeding session. No hearing or action is required during the session. Everyone here has voted for those roles. I dont know why folks taking it contrary view in the minority did not change that rule, do not vote no to the role or not proposing a change several now. Everyone voted for the role. These arguments somehow the constitution requires us to act in a certain way or a certain timeframe just isnt true. And honor of Justice Scalia we need to read the words 1st and foremost and it is instructive because that is really what this debate is all about. They can have a new justice or one who helps make it up as he or she goes along. Legislate from the bench and try to get to a certain endpoint using whatever arguments eyes or her disposal. And of course, as has been said clearly so many leading members on the other side have confirmed this in the past when they were in a different position. Senator reed, senator schumer went a lot further back than we are now. 18 months before the end of the bush presidency, no Supreme Court justice should be confirmed except under extraordinary circumstances this is not an extraordinary circumstance with the election coming up. I defer to the people. And so the question is,is, what is the right thing to do moving forward . Very comfortable with putting them in charge. That is certainly what my constituents want in louisiana. There crying out in frustration of not being in charge of washington regularly ignoring there wishes of this trend, legislating from the bench and making it up as they go along continuing. They want to voice in this and what a voice to be able to stop that. So i defer to the people. We have a unique opportunity to do that with this very important president ial election before us. I often think in virtually every president ial election that the most important issue in the election which gives little or no attention is Supreme Court appointments because that has impact for decades to come. They have an opportunity this year where that will not be the case. Where hopefully that will be front and center. Have an important debate about the proper role of the Supreme Court, the proper way for judges to make the decisions, to read and apply the law as written and certainly my constituents in louisiana want that. They want to have a leading voice, be in charge. The great majority of them strongly object to the trend of nine or really five unelected lawyers making huge decisions for society which are not in and are not mandated by the constitution. So, i appreciate your leadership. I strongly support the path forward and i vote for putting the people and citizens in charge through the president ial election. It is important and somewhat unique. Senator lee has the statement. Thank you, mr. Chairman. I would ask if he could stay. You can certainly speak. Do i have to stay warm . We will give you unanimous consent to speak even if he goes. I do havei do have to go. I would like to address a couple things you said, but you can hear them in the record or Something Like that. This idea of nine unelected justices making law from the bench is what we have seen with the roberts court. This is one of the most activist courts we have had. My goodness, how many times have i spoken to this, and when we have these sort of mayor hearing, my 5th day in the senate and this is an activist court. And you talk about the irony Justice Scalia, we had 100 votes on the Voting Rights act, unanimous vote by this United States senate, and what Justice Scalia said, that senators voted for because it was named the Voting Rights act. That . A half an hour of argument and ignored the hundreds of hours of hearings. This is insulting. To here that. It is just insulting. Now, let me say aa couple of things about some of the stuff i have been hearing. Senator biden, chairman biden, when he spoke, does anyone here know, well, it would be the chairman, do you know when he spoke . Somebody designed to gain the system. We are talking here about confirming someone to replace a justice who has died. Think about how different that is everybody. When Chuck Schumer says an extra nurse situation, he is talking about someone dying. Scientists tell us theyre to math month left. And Justice Scalia minded not agree with him. I thought he was a very witty, funny guy. That is a high compliment coming from me. I value that highly. No one dies to gain the system. What biden was talking about is a justice, as soon as the Supreme Court session ends with an resigning in order to gain the system. As far as senator obama going to filibuster, that is the 60 vote threshold. You can listen to it as i go. It is, Justice Thomas was confirmed 52 to 42. A little bit irritating. I think the chair for his indulgence in all my colleagues. I seem to be the last person sitting or standing. Ask permission to include my remarks in the record. Without objection so ordered. [inaudible conversations]
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