Washington, DC – In a speech at the University of Denver’s Sturm College of Law, Colorado U.S. Senator Michael Bennet cited our nation’s Constitutional values and the traditions of the U.S. Senate in a call for the Senate to consider the nomination of Judge Merrick Garland to serve on the Supreme Court.
In his remarks before DU law students, faculty, and staff, Bennet noted that unlike the Senate’s plodding pace on legislation and most other matters, its consideration of Supreme Court nominations takes on average just 70 days from the time the President announces a nomination.
“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.”
Bennet examined the Constitutional language directing the Senate to offer “advice and consent” on the President’s nominees.
“When a vacancy arises, the President shall nominate a replacement and the Senate shall advise and consent. To me, this means voting on the nominee. That is what the plain language of the Constitution requires, and that is what Presidents and the Senate have done for over two centuries. Throughout our history, the Senate has confirmed 17 nominees in presidential election years to serve on the Supreme Court. The last of these was Justice Kennedy in 1988.”
Bennet cited Justice Scalia himself who warned against the perils of proceeding with 8 justices. He also noted that senators who claim to be “originalists” have willfully ignored the plain meaning of the Constitution in favor of a phony “standard practice.”
Remarks as prepared for delivery:
I would like to thank Dean Katz for the introduction and DU Law School for hosting us today. I would also like to thank Professor Chen for moderating.
Thanks very much to the students and faculty for being here today and for giving me the opportunity to address the Supreme Court vacancy caused by Justice Antonin Scalia’s death.
I seldom give a formal speech on the Senate floor, much less in Colorado, but this moment is unique in American history, and I want to put this on the record. I appreciate your patience, and will be happy to take any questions or criticism at the end.
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, he was devoted to his family and friends, including 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 the Senate who disagreed with his vision of the Constitution, but, exercising their constitutional duty, refused to withhold their support for a qualified nominee. I have no doubt that President Obama’s nominee, Merrick Garland, would receive similar treatment in a functional United States Senate. I have known Chief Judge Garland for more than twenty years, and worked for him when he was the principal Deputy Attorney General at the Justice Department.
I was fresh out of law school, and even then was inspired by his work ethic, integrity, and commitment to the rule of law. I knew he had left a partnership at a major law firm to become a line prosecutor in President George H. W. Bush’s Justice Department, taking on cases involving public corruption, drug trafficking, and fraud.
In the Clinton Administration, he oversaw the investigation that led to the conviction of Timothy McVeigh, the Oklahoma City bomber.
He clerked for Judge Henry Friendly on the Second Circuit and Justice William Brennan on the Supreme Court. He has served as a moderate judge on the D.C. Circuit for 19 years and has been its chief judge for three years. In a quarter century, I have never heard another lawyer refer to Judge Merrick Garland without the highest admiration.
Yet, in today’s Washington, he cannot receive the courtesy of an interview from the Majority Leader or the Chairman of the Judiciary Committee.
Just ten days before Justice Scalia’s death, Chief Justice Roberts lamented the dysfunctional nature of the confirmation process. He said “the process is not functioning very well” and that it “is being used for something other than ensuring the qualifications of the nominees.” Most pointedly, he observed that Supreme Court Justices “don’t work as Democrats or Republicans . . . and I think it’s a very unfortunate impression the public might get from the confirmation process.”
In 2007, Justice Scalia, himself, spoke of the confrontational confirmation process. He said: “I was confirmed 98 to 0. I was known as a conservative then, but I was perceived to be an honest person. I couldn’t get 60 votes today.”
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. To me, this means voting on the nominee.
That is what the plain language of the Constitution requires, and that is what Presidents and the Senate have done for over two centuries. Throughout our history, THE Senate has confirmed 17 nominees in presidential election years to serve on the Supreme Court. The last of these was Justice Kennedy in 1988.
This history reveals that when the current Chairman of the Judiciary Committee said “[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.
Not only was he incorrect, but it is astonishing to watch a committed originalist like Chairman Grassley substitute phony “standard practice” for the actual text of the Constitution.
But, as long as he is doing so, “[t]he 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 nominees to fill vacancies on the Court. The President was 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.
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.
When reflecting on the composition of a 4-4 Court, Justice Rehnquist once wrote that such a situation would lead to conflicting decisions in different circuits and “would lay down one rule in Athens, and another rule in Rome” thereby defeating the constitutional design of the Court. (And this has already occurred just days ago.)
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, consider what a vacancy during the pendency of two terms of the Supreme Court 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. Think about the constitutional crisis that would provoke for our nation.
A member of your faculty, Justin Pidot, recently proposed ways to reform the Court when it experiences a 4-4 tie.
He wrote that tie votes “pose a threat to the Court’s legitimacy. Tie votes are, in effect, an admission that the justices have failed to fulfill their constitutionally assigned job responsibilities because they could find no manner of resolving a case that was acceptable to a majority of them.”
I understand there is disagreement about what the Constitution compels the Senate to do in this instance. Some say that “advise and consent” means that we need to vote;
others, including the present Majority Leader and Chairman of the Judiciary Committee, argue that the Senate can appropriately “withhold consent” by even refusing to meet with a nominee, much less have a hearing in the Judiciary Committee, or a vote on the Senate floor.
I believe it is our constitutional duty to have a vote (and fundamentally a matter of personal politeness to interview the nominee) but I also know that federal courts may treat this dispute as a “political question,” something to be resolved by the legislative branch, not the judiciary.
In other words, even though I believe we have a constitutional duty to vote on President Obama’s nominee, it is possible there is no constitutional remedy if the majority refuses to do so.
In essence, the Majority’s position is, “you can’t make us do it.” Even assuming for arguments sake they are right, we still must ask them to reconsider their radical departure from 240 years of tradition, especially when the Majority Leader describes his position in poll-tested, Orwellian terms as “a fair approach … a reasonable compromise … that [is] the best way forward for our country now.”
Following the plain language of the Constitution and moving forward on the nomination represent a fundamentally conservative approach to our responsibilities.
We have to reject this unprecedented abdication of our most basic Constitutional obligations. If not, where will this end?
If a president can’t have his nominee considered over 300 days from an election; why not two years; or four years from the election? Why not routinely hobble the Supreme Court?
Even if the constitution does not, in fact, oblige us to consider President Obama’s nominee, it is, I think, nevertheless our duty as responsible public servants to do so; and your obligation as officers of the court to hold your elected officials accountable and demand a fully functioning judiciary.
Believe me, I know it has become fashionable for Washington politicians to tear down, rather than work to improve, the democratic institutions that 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.
It’s not as if we don’t have the time. In July and August, the Senate is scheduled to take a seven-week summer recess. During that time, 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. The Majority determines it.
Over the past few weeks, I’ve wondered what this must look like to the single mom I met in Pueblo West in February. She manages a retail store.
She told me she struggles each month to decide what bills not to pay just to stay afloat. 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 help pay for child care so she can keep her principle job.
Millions of Americans are watching the United States Senate take the entire summer off and not do our job. That doesn’t meet the standard of a great nation or a great parliamentary body.
This episode has become an extension of the pettiness that has metastasized in this Presidential primary season. Colorado and the country would be so much better served by a national political conversation that re-asserted our principles and ideals, our deep culture of tolerance, justice and equality, and our commitment to the rule of law, particularly our longstanding Constitutional heritage.
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 full restoration of the Senate today.
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.
This 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.