U.S. Sen. Mikulski: “To Obstruct a Supreme Court Nominee for Political Reasons Would be Absolutely Unprecedented”

From the office of U.S. Sen. Barbara Mikulski:

WASHINGTON – U.S. Senator Barbara A. Mikulski (D-Md.) today spoke out on the Senate floor calling on the Senate to fulfill its constitutional duty to fill the vacancy on the U.S. Supreme Court following the passing of Justice Antonin Scalia.

“I urge my colleagues: Do your job. Follow the Constitution and live up to the Constitution. The Constitution doesn’t say that in an election year, delay, delay, delay. The word delay doesn’t even appear in the Constitution, in the hope that one day you’ll get your way,” Senator Mikulski said. “I am calling for following the process mandated by the Constitution and mandated by our traditions. The President nominates. Let’s meet with the nominee. Let’s hold the hearings, follow the process, and let’s bring it to a vote.”

Senator Mikulski’s remarks on the Senate floor, as delivered, follow:

“Mr. President, I rise to speak on an issue before the American people, and that is the Supreme Court vacancy.

“I rise today to express my very deep, deep disappointment in my Republican colleagues for vowing to block President Obama’s nominee to fill the vacancy on the Supreme Court. Each and every Senator serving in this chamber was elected by the American people, and we took an oath to uphold the Constitution. In this matter, the Constitution is very clear. Article 2, Section 2 says, ‘The President shall nominate, and with the advice and consent of the Senate, shall appoint judges of the Supreme Court.’

“It doesn’t say the President has an hour and a half left. It doesn’t give a time limit on the President. If you’re President and you have a four-year term, you have the authority and duty to exercise your obligations under the Constitution for a full four years. And the Senate has a duty to provide advice and consent. There are no waivers for election years.

“I urge my colleagues: Do your job. Follow the Constitution and live up to the Constitution. The Constitution doesn’t say that in an election year, delay, delay, delay. The word delay doesn’t even appear in the Constitution, in the hope that one day you’ll get your way.

“Republicans have said that the Senate must wait until the people have spoken by electing a new President in November. But the American people have already spoken. They elected President Obama in 2008, and they re-elected him in 2012. Barack Obama is our President now until noon, January 20, 2017. If the founders wanted a three-year term, they would have written that in the Constitution, but they mandated a full four complete years.

“Now the other party wants to deny the President the legitimacy and the authority of his office. Even George Washington had his nominee considered during a presidential year with three of his candidates confirmed. What was good enough for the first Congress under George Washington should be good enough for this Congress now under President Obama.

“President Obama and I will both be closing our offices in January of 2017, but that doesn’t mean we’re done working for the American people today. There’s a lot of work to be done. President Obama has the constitutional duty to submit a nomination, to fill the vacancy left with Justice Scalia’s passing. This duty is not suspended in an election year.

“The Constitution is clear about the President’s authority. The President must fulfill his duty and we must do our job. The issue is not about executive orders or checking executive powers or interpreting law books. It is about following the Constitution.

“I say to the Republicans on the other side of the aisle, please do your job. Your constituents elected you to this position to follow the Constitution.

“Now, if you don’t like the nominee that the President has, vote ‘no,’ but follow the process. The President will nominate. We go through a courtesy process where the nominee calls upon each Senator and then there are hearings. And maybe there are several days of hearings. And then there is a vote.

“I am calling for following the process mandated by the Constitution and mandated by our traditions. The President nominates. Let’s meet with the nominee. Let’s hold the hearings, follow the process, and let’s bring it to a vote.

“Over the last 40 years, the average time it’s taken for the Senate to act is only 67 days from nomination to confirmation. So to say that we don’t have enough time just doesn’t work. We have ten months – there are 330 days left in this President’s administration to do this job.

“Now, some of my colleagues say there’s precedence for this obstructionism. Chairman Grassley, the Chair of the Judiciary Committee, cited four times in our history where a President did not nominate someone to fill a vacancy during an election year. Well, those numbers are right, but guess what? The vacancy occurred after the Senate had adjourned for the year. None of those Presidents could have nominated a candidate because the Senate wasn’t in session.

“For the past 100 years, every Supreme Court nominee has been acted upon. Even if they got a disapproval vote in the committee, they still got a vote in the Senate.

“Robert Bork in 1987 was voted down in the committee. He still got a vote on the floor where he was voted down. Clarence Thomas in 1991, one of the most contentious and controversial Supreme Court nominations, that I could participate in, was voted by the committee without recommendation. He got a vote on the floor where he was approved 52-48.

“Each of these candidates had their day to be evaluated. Each Senator had the ability to provide their advice and consent – or in some cases not consent. I didn’t always vote ‘yes’ on the nominee, but I certainly followed the process.

“We never denied a sitting President his duty to provide a nominee. This is of utmost importance to our nation. It really is. The Supreme Court is unique. It is the highest court of the land with real and lasting impact on American lives. To obstruct a Supreme Court nominee for political reasons would be absolutely unprecedented.

“Until this vacancy is filled, the Supreme Court is left with eight members and the potential for tie votes. If there’s a tie vote in a decision, the ruling of the lower court remains, and it is as if the Supreme Court never heard the case. And in some cases that leaves disagreement among courts, leaving our laws at odds with each other.

“If this vacancy lasts until the next President, the Supreme Court could be left without its full membership for two terms of the court. Some of the cases with the most impact on our history have been decided in 5-4 votes. That takes me to some cases particularly of concern to me. What if we have a tie decision? We would still be stuck in gridlock.

“The Senate knows that I’ve been very involved in equal pay for equal work. There was the famous Lilly Ledbetter case –Ledbetter v. The Goodyear Tire Rubber Company. It was decided 5-4. She faced injustice not only at her job, but in the courts. At the urging of Justice Ginsburg, the Senate provided a legislative remedy to correct that injustice. If we had a tie, we might not have ever been able to resolve this issue, both through the Court and through the Senate.

“This is what democracy is supposed to be. But then we get to another case that was just amazing. That’s Bush v. Gore. Do we all remember Florida in the 2000 election? Do we all remember the hanging chads? Do we all remember days when we weren’t really sure who had won the election? Al Gore or George Bush?

“But, you know, it was America. Banks stayed open. There were no tanks in the streets. School children were able to go about learning what America is all about and get ready for the new century. We were moving ahead because the process moved through the courts. When it came to a decision, Bush v. Gore was decided 5-4. Can you imagine now if we had a tied court? We would have had a constitutional crisis, and we would have had a crisis over who was the legitimate President of the United States. We can’t have this again.

“I hope that when the voters make their decisions in November on who they want to be the next President, that it is clear and decisive and we don’t end up before the Supreme Court. But should we, we need to have a court that is not going to end in a tie. And we have to do our job to make sure that there are nine Justices on the Supreme Court.

“In the interest of our country, follow the Constitution. Do your job. And say to the world that we are a nation of laws. We encourage people all over the world that are emerging from often authoritarian regimes, or chaotic situations, to write a Constitution and live by it.

“We wrote a Constitution. Let’s live by it. And I would say that we need to follow what we say, what we were elected to do that. We swore an oath to do that. President Obama must do his job. I urge the Republicans to do your job. Let’s follow the Constitution and live up to the Constitution.

“When the President makes his nomination, let’s open our doors so we can meet with that nominee. Let’s hold a hearing, or multiple hearings if necessary, and then let’s hold a vote on the Senate floor. Let’s be accountable by the deeds of our votes, not just by avoiding our responsibility.”