Redlining the Constitution

Replacing Article II, Section 2 with “Standard Practice” Imposes Congress’s Dysfunction on the Supreme Court

Senator Bennet delivered the following remarks on the Senate floor, regarding the Supreme Court vacancy caused by Justice Antonin Scalia’s death:

First, I think it’s important to reflect on Justice Scalia’s life and profound influence on the Court and our Country. He was one of the longest-serving Justices in our Nation’s history, and, as far as I can tell, every day he served, he applied his considerable intellect, integrity, and wit to the work before him. And, although I disagreed with many of his decisions, I never doubted his commitment to the rule of law. He was a principled originalist. He was loyal to his country. By all accounts, including moving testimony from his children, he was devoted to his family and friends, including to Justice Ruth Bader Ginsburg with whom he often disagreed.

Judge Scalia’s judicial philosophy was well understood when President Reagan nominated him to the Supreme Court in 1986. Many senators opposed his judicial approach. But, in an echoing indictment of today’s Senate and its partisanship, thirty years ago, the United States Senate confirmed Justice Scalia 98–0. A vote that testifies to Justice Scalia’s qualifications and to the integrity of members of this body who disagreed with his vision of the Constitution, but, exercising their constitutional duty, refused to withhold their support for a qualified nominee.

Here’s what Article II, section 2, clause 2 says about our and the President’s duty, “[The President] shall nominate, and by and with the Advice and Consent of the Senate shall appoint . . . Judges of the Supreme Court.” When a vacancy arises, the President shall nominate a replacement and the Senate shall advise and consent by voting on the nominee.

That is what the plain language of the Constitution requires, and that is what Presidents and the Senate have done throughout our history. That is why, in the past 100 years, the Senate has taken action on every single Supreme Court nominee, even those made during a presidential election year. Throughout our history, there have been at least 17 nominees confirmed by the Senate in presidential election years. The last of these was Justice Kennedy in 1988.

This history reveals that when the Chairman of the Judiciary Committee said last week “[t]he fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year” he was incorrect.

“The fact of the matter” is that since the founding of this country, the Senate has done its job even in an election year. In fact, during one election year the Senate voted to confirm not just one but three justices to fill vacancies on the Court. The President was none other than George Washington. And he was in the fourth year of his second term. That Senate included some of our founders, delegates to the constitutional convention. But, come to think about it, what did they really know about the Constitution?

On that subject, it has been incredible (in the truest sense of the word) to hear people — Senators and even candidates for President — who claim to be (as Justice Scalia surely was) “constitutional originalists” or “textualists” — willfully ignore the plain meaning of the Constitution in favor of this so-called “standard practice.”

That’s not a form of constitutional interpretation with which I’m familiar, but it seems to be guiding the Majority Leader and the Chairman of the Judiciary Committee away from the text they claim to revere. They wrote in the Washington Post:

It is today the American people, rather than a lame duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia.

I have redlined the actual words of the Constitution with their claim:

You can see they bear no relationship to one another. Only seven words remain from the original constitutional text, including a conjunction, a definite article, and a preposition. Otherwise known as and, the, and of. Oh, and by the way, if we want to talk about a real “standard practice,” the President only becomes a “lame duck” after the election and until the Inauguration.

It is telling that unlike almost all our other work, the Senate’s consideration of Supreme Court nominees has been remarkably expeditious. On average, the Senate has voted 70 days after the President’s nomination. When Justice Scalia died, 342 days remained in this President’s term, nearly a full quarter of his final term in office.

Why has the Senate, notorious for its glacial slowness, historically acted with such deliberate speed when it comes to our consideration of Supreme Court justices? I suspect there are three principal reasons.

First, the constitutional clarity that commands us; second, the unique nature of the responsibility (no one else, including the House of Representatives can exercise it); and, third, the essential importance of the Supreme Court’s composition.

With respect to the Supreme Court’s composition, no less of an authority than Justice Scalia himself, explained it well. Asked to recuse himself from a case involving Vice President Cheney, Justice Scalia rejected the suggestion that he should “resolve any doubts in favor of recusal.” He observed that such a standard might be appropriate if he were on the Court of Appeals, where:

[his] place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: 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.

Justice Scalia then quoted the Supreme Court’s own recusal policy observing that “[e]ven one unnecessary recusal impairs the functioning of the Court.”

If even one unnecessary recusal impairs the Court, imagine what a 14 month’s vacancy would do. Imagine if in 2016, we had a repeat of 2000, when the Supreme Court decided Bush v. Gore, except with only 8 justices on the bench. Imagine the constitutional crisis our nation would have to endure.

I know it has become fashionable for Washington politicians to tear down, rather than work to improve, the democratic institutions generations of Americans have built. But to impair so cavalierly the judicial branch of our government is pathetic.

It is a standard one would expect of a lawless nation, rather than a nation committed to the rule of law. It is the behavior of a petty kangaroo court, not of the United States Senate. And it threatens to deny justice to millions of Americans in the name of petty politics.

It is time for the Senate to do its job, as every Senate before us has done. I am not asking my colleagues to support the nominee. That is a matter of conscience for each of us. But what is unconscionable is that the majority, if it keeps its word, will have no hearing, hold no vote, and refuse the courtesy of meeting with the President’s nominee.

And, speaking of doing our job, in view of the seriousness of this Court nomination, we should reconsider the Majority’s proposed seven week summer recess for the Senate. In July and August alone, we are barely in session for 8 days. Unlike our responsibility to vote on Supreme Court nominees, the Senate schedule is not enshrined in the Constitution. It is set by the majority.

In that connection, I’m glad to invite any of my colleagues to my office to watch a video of a constituent of mine whom I met two weeks ago in Pueblo West. She manages a retail store, and struggles every month to keep going. Unlike the Senate, she has 22 vacation days a year, not a month. But she doesn’t use her vacation days to take time off. Instead, she works a second job to pay for child care so she can keep her main job. Millions of Americans are watching the United States Senate take the entire summer off and claim that there isn’t time to do our job. That doesn’t meet the standard of a great nation or a great parliamentary body.

What’s worse is that this whole charade has become an extension of “playground politics,” the childish pettiness that has metastasized in this Presidential primary season. How far have we drifted from our simple Constitutional obligations when one side refuses even to meet with any prospective nominee? What message does that send to the people of Colorado and across this country? Where I come from taking your ball and going home isn’t acceptable behavior on the playground; how could it possibly be acceptable in the United States Senate?

Senate greatness, the national interest as a legislative guide, maturity, and comity will not be restored overnight or with a single decision. It has taken far too long for us to travel down this destructive road to deadlock, ideological rigidity, and bitter partisanship for a restoration of greatness to the Senate to occur quickly.

But we should begin — and we can begin — with our treatment of one of our most serious, even sacred, duties: the confirmation of the next Justice of the Supreme Court. We are not here to pacify a political “base” or satisfy one or more special constituencies or rally our political parties. We are here to elevate our Republic, to make it a beacon for the world, to demonstrate how mature representatives of sovereign States govern a mature nation.

This Supreme Court nomination is not a test of strength between the executive and the legislative branches. It is a test of our strength as leaders with an honorable history and a heritage of wisdom and maturity. How we manage our Constitutional duty to provide serious consideration and deliberation to a rare appointment to the nation’s highest judicial office will determine whether we deserve the respect of Americans who rightly expect us to exhibit dignity, mutual respect, and wisdom on their behalf.