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tv   Key Capitol Hill Hearings  CSPAN  March 10, 2016 12:00pm-2:01pm EST

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a supreme court nominee. how do you feel about that? scalia was a conservative and a constitutionalist and we should go with whatever -- i don't think we should undo the balance. that is what i have to say about it. it is a shame that it comes at this time. it is a shame that he died when he died. i think the voters should begin the opportunity and the senate has that way of doing things and i think they should take it. host: one of those senators not in the meeting room was ted cruz. we go next to lorain, ohio.
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caller: that last caller, i don't agree with. that is like a republican dictatorship. find that the republicans want everything -- that is not the american democratic way. i think that the republicans are point where they are threatening the very existence power.ican host: how so? caller: i find it written in the bible in isaiah 32:3-8. i think that if they don't change, if the american people do not vote those people like office,connell out of they are putting their children and this country in dire
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straits. thank you. host: thank you, robert. we just got word that the judiciary committee will not come back in. they have wrapped up their meeting. we will wrap up our calls. , democrats.00 (202) 784-8001, republicans. (202) 748-8002, independents. lizzie, good afternoon. caller: good afternoon. my opinion is that they should allow obama to nominate. the republicans don't like obama and i don't know the reason why they don't like him. they should allow him to do his job. he is still the president of the united states of america. they should give him the chance to do with they need -- he needs
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to do. when it comes to republicans, they are so mad, they are so angry at him. we are americans and we are watching what they are doing. , they shouldto win know that obama is the president, they should respect him. that is my opinion. host: justice scalia died on saturday, february 13. shortly thereafter, the majority leader in the senate, mitch mcconnell, said the senate would not take up consideration of a supreme court nominee from the president in the remainder of this session. shortly after that, the president invited the republican leaders, democratic leaders, as well, from the judiciary committee for what was described as a brief conversation. post"o in "the washington from that discussion in the oval
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office. texarkana, texas. i apologize, bill. go ahead. caller: yes, this is very unprecedented to me. why theynderstand wouldn't hear what the president has to say. -- ink the republicans think the senate is hoping for a republican to get into office so they can somehow manipulate and add a justice to go their way. i don't understand why they think that is their job. their job is to hear the president's nomination, at least to hear the president's nomination. they are hoping that a republican can get in there, so they can have the kind of supreme court justice they want.
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it is appalling that they won't let them hear. host: that is built from texarkana. another view from texas. we will go to houston. gene is on the republican mind. caller: i personally believe that we should wait. there were too many things that could be decided in the courts ghtt need to be done ri because of we don't, there will be a lot of mistakes made. different things like immigration and in the courts that need to wait. i'm thinking we need to get a good justice like scalia was to outweigh everything so we can on everything,t so people can understand why we
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have a supreme court. thank you for taking my call. host: thank you, gene. the issue came up a short while ago. the canadian prime minister justin trudeau is in washington dc. the first question for president obama at their joint news conference was that -- about a potential supreme court nominee. [video clip] respect tobama: with the supreme court, i told you what i'm looking for. i want someone who is an outstanding jurist, who has impeccable legal credentials, who, by historical standards, questioned as be qualified for the court. somebody who is follows the sure constitution, cares about things
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understands the necessary humility of a judge at statute, in looking at looking at what the elected branches are doing. it is not viewing themselves as making law or standing above elected representatives, but also recognizes the critical role that branch plays in protecting minorities, ensuring the political system does not skew in ways that systematically leave people out. in keeping with the traditions that are embedded in our cherished documents like the bill of rights. , in terms of who i would
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select, i'm going to do my job and then my expectation is going senate do with job, as outlined in the constitution? i find it ironic and i've said this before the people who are constantly citing the suddenly readould into the constitution requirements, norms, procedures that are nowhere to be found. kinds ofrecisely the interpretive approach that they have vehemently rejected and that they accuse liberals of engaging in all the time. abandon your't principles, if, in fact, these are your principles, simply for the sake of political expedients. we will see how they operate once a nomination has been made. i'm confident that whoever i , among fair-minded
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people, will be viewed as an eminently qualified person and it will then be up to senate whetherans to decide they want to follow the constitution and abide by the rules of fair play that ultimately undergird our democracy and that ensure that the supreme court does not just become one more extension of our polarized politics. host: part of president obama's joint news conference with the canadian prime minister. all of that later in our program schedule and that asking you whether the senate should consider a supreme court nomination. headline today in the "washington post" about some of the behind the scenes efforts. george is next up in pennsylvania on the independents line.
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caller: how are you doing? host: i'm fine. go ahead. caller: the same situation came , was a president bush justice roberts that was -- there was a vacancy in the supreme court, justice roberts. host: george h.w. bush or george w. bush. caller: bush iii. host: the same situation did not come up with justice roberts, no. caller: when president obama was in the senate, it was the same situation -- i forget which bush it was. host: right. go ahead. caller: anyway. that hea statement should not be the one, he should leave it to the next president, who would have been clinton.
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when you have this kind of a situation, where there is a conflict of interest and you can actually show that clip, why don't they show the clip when the president is making the statement that he should be able to select the supreme court justice and then have the senate confirm it before the end of his second term -- you know, when the president does that, why doesn't the media say, this is what you said back then? what is the difference between then and now? host: there certainly seems to be a fair amount of that in the meeting in the senate judiciary committee. let's get one more view from brian in michigan. democratic caller. caller: good afternoon. i'm disappointed that the republicans don't follow the constitution. been 1900, there have seven nominees in the last year
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of a presidency. six of those nominations were advised and consented by the senate and were appointed subsequently. is them to say otherwise just clearly a misstatement of the truth. they are not telling the truth. the average number of days a president has to wait for a supreme court nominee is 25 to get through the process. host: do you think that the senate itself could simplify matters a bit in changing their own rules on how supreme court nominations are handled in the final year of a president the death presidency? -- presidency? caller: they are setting a precedent now. if the democrats win the white house, i don't want to hear crying from the republicans because they are ridiculous. you cannot have your cake and eat it, too, at least when i am
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around. host: next up, we are going to show you this morning's meeting of the senate judiciary committee, gaveled in by chuck grassley. it is about an hour and 45 minutes. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> i know we are going to have the floor ines on the committee on this subject. i did not know we had a vote scheduled. i would like to finish about 11:40, so we all get a chance to vote.
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we have several bills on the agenda for the first time, as well as for nominees, three of those are right for a vote. i would hope to move those three out of committee. know that we have difficulties between the two parties on that issue and i won't go over that. as i said yesterday, i want to open this meeting up for discussion on the supreme court vacancy before we turn to the agenda. we will hold over the goislation and then we will over the nominees. there has been a lot of discussion about the supreme court nomination. the senate has been pretty clear about why we are going to approach it in a certain way.
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i've spoken at length on these issues. somehow, i doubt my colleagues have been spending their free time reading my speeches, so i a fewt i would spend minutes reviewing where we are and dispelling the myth that i have reheard -- heard repeated over time. the most appropriate place to biden's with chairman famous speech in 1992. in that 20,000 word speech, he went into great detail about the supreme court vacancies during a heated presidential debate. we are pretty familiar with the biden rules, i'm not going to repeat them. based on what i've been hearing, there appears to be confusion about the matter. i would like to clear a few things up. first of all, there has been some suggestion that chairman biden did not really mean what he said. it has been suggested that when he explained why the senate should not consider a supreme court nominee during a heated
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presidential election campaign, somehow the actual words he used had a secret or completely different meaning. as an aside, i would note this sounds a lot like how some judges tend to read the constitution. thankfully, for all of us, chairman biden spoke at length, as he so often did when he was in the senate. and he was very clear. for the benefit of my colleagues, this is just in part. this will not be as long as what you heard in the senate. "should a justice re-signed this summer and the president moved to name a successor, actions that will occur just days before the democratic convention and weeks before the republican convention meets, a process that is already in doubt in the might of many will become distrusted by all.
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senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the senate itself. now if that wasn't clear enough, chairman biden continues "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 a supreme court justice resigns tomorrow or within the next several weeks or resigns at the end of the summer, president bush should consider following the practice of a majority of his predecessors and not name a nominee until after the november election is completed." and then from there of course,
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chairman biden went on to say that if the president did not follow the practice of the majority of his predecessors and submitted a nominee anyway, then the senate should not consider the nominee. let me offer a couple of observations. i said over the last few days, some have tried their best to recast what chairman biden actually said in an attempt to give it a totally different meaning. even the vice president suggested that what he said in 1992 his not what he really meant. instead, the argument goes his 1992 speech was about brady -- greater cooperation between the president and the senate. chairman biden did talk about more cooperation. there is only one problem. he said that cooperation should occur "in the next administration." it was only after discussing why the president should not set a nominee if a vacancy arose and only after explaining why the senate should not consider any such nominee regardless of how good a person is nominated that chairman biden turned to how the process should change in his view in the next administration.
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here is what he actually said. "let me start with the nominating process and how that might change in the next administration, whether it is democrat or republican." just so they would not be any confusion he repeated it to sentences later. "with this in mind, let me start with the nomination process and how that is this 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."
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chairman biden was very clear. whatever you do, all the spin in the world is not going to change that fact. now, we have talked a lot about the biden rules, but we have not talked about why he felt so strongly that conducting hearings in these circumstances would be bad for the nominee, but the process, and bad for the senate. it was because under these circumstances, the process would not be about constitutional interpretation and the proper rule of the court -- role of the court. it would be a hyper political slugfest as chairman biden said. "where the nation to be treated to a consideration of constitutional -- all it will get in such circumstance is partisan bickering and political posturing from both parties from both ends of pennsylvania avenue." chairman biden was making the point that all of us know to be true, but only some of us are willing to admit. considering his supreme court nomination in the middle of a
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presidential campaign would be all politics and no constitution. if there is any doubt that this was chairman biden's view, just look at how he described the problem in an interview about a week before his famous speech in 1992. "can you imagine dropping a nominee into that fight, into that cauldron, in the middle of a presidential year?" the result of such supercharged environments would be this. "whomever the nominee was would become a victim." i raise this in part because we are already witnessing how raw politics is infecting the process. regardless of what some are willing to admit publicly, everybody knows any nominee submitted in the middle of this presidential campaign is not getting confirmed.
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everybody knows that. the white house knows it. senate democrats know it. republicans know it. even the press is saying so. why this charade? why all this outrage? why the demand for a hearing as somebody knows will never result in a confirmation? it is because the other side is committed to using this process to score as many political points as possible. that is it. plain and simple. the minority leader has taken on a daily basis to attack me. we have seen that kind of thing around here from him before. it is all about using this process to score political points. it is that simple. we are even seeing reports from the white house election process is guided by raw calculation, what they think will exhort the most political pressure on me.
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be misguided logic appears to be that if they nominate someone who i were other republicans supported for a lower court will somehow conclude that it is a good idea to drop that nominee into what chairman biden called the cauldron of a hearing during a heated presidential campaign. people conveniently forget that judge bork was confirmed unanimously to the d.c. circuit, but that was before the other side viciously attacked and smeared him when he was nominated to the supreme court. it has even been suggested that if the white house elects a judge from iowa, i would try to convince my colleagues it is a good idea to hold a hearing. we have been upfront and very 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.
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when are not going to drop any nominee into an election-year kaufman. i am certainly -- election-year cauldron. i am certainly not going to let it happen to the good people of iowa. some of the arguments we have heard are so asburd, they barely merit rebuttal. but my colleagues are under the impression that if they repeat something often enough, it magically becomes true. take a couple minutes. i have heard it said that the borg-kennedy episode somehow lends support to the notion that he senate should consider nomination during the middle of a presidential campaign. the argument is because justice kennedy was nominated in 1987 and confirmed in 1988, this disproves german violence argument -- this disproves chairman biden's argument. the only was this happened is because it was treated to an unprecedented and shameful smear campaign in 1987.
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those of us who were here remember it very well, in that brings me to another related point. it has been suggested that the democrats who were here in 1987 and 1991 and chairman biden in particular should be applied for how they handle the nominations. i will set aside the obvious notion that neither of those nominations occurred during a heated presidential campaign. the argument appears to be that judge bork and justice thomas were treated to a fair process because even though they did not have the support of a majority in this committee, they were reported to the floor. i am not going to relive those -- relitigate those nominations, but i say this. i was here. i saw what happened to both of them, to their record, to their reputation, and to the shameful
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impact it had on their families. if anyone wants to argue that either one of those individuals were treated to a fair process, they are free to make that argument, of course, but to the senator, it would be laughable if it were not so sad. it has also been said that the biden rules do not apply because there was not a vacancy when chairman biden took to the floor in 1992. consider that for a minute. chairman biden spoke on the end ofhat day before the the court's term. that is the day when justices often announced their retirement. it is true that was the vacancy at that time, but the chairman of the senate judiciary committee wins to the floor of the senate -- went to the floor of the senate and put the public all nine justices 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
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consider any replacement consistent with past practice s. based on what we have heard over the last few days, you would think those who were pressing -- expressing outrage today would have gone to the floor to express their disagreement with chairman biden in 1992, but for some reason, that did not happen. not a single democrat went to the floor that day or in the days or 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 and said no, mr. chairman. there may be the senate's history and there may be good reason for it, but i think we should press ahead with an election year nominee anyway. not a single one. not one said no, mr. chairman, i disagree. we have not located any newspaper editorials taking him to task either.
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so much between fairness then and now. what 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 this idea that because republican senators met to discuss the issue that somehow we were not being upfront and open. we could get into all the secret meetings that the other side held before they walked into the chamber on november 21, 2013, and invoked the nuclear option, why i don't think that would be a constructive debate. everyone in this room knows we meet to discuss important matters, the reason i know everyone in this room knows it is because i met with each one of you on one issue or another, and you did not invite in the press or the public. when i first became chairman, i met with every single republican
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individually and privately, and i offered to meet with every democrat individually and privately, and in fact i did meet with most of you on that side of the aisle. i met with each of you so i can learn what are your priorities. i wanted to know what each one of you wanted to see accomplished. in most cases on every side of the aisle, i have cosponsored legislation with you even when you led the battle as senator government has done on sentencing reform, for example. -- senator durbin has done on sentencing reform, for example. where we can agree, where we cannot, and where we can work together to an agreement, that is how we get things done. that is how you lead. the bottom line is this. we did not play games. we did not hide the ball. we made clear up front to the president, the senate democrats, and the public exactly what we are going to do and why we are going to do it. we did it with eyes wide open. we knew the minority leader and others were going to make this
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as politically as possible. that is very unfortunate. but ultimately, it does not matter because it is the right thing to do. senator leahy. chairman. i will not go through everything i disagree with your accounting of the past. we have been here too long and we have been friends for too long. one thing when we talk about with it is joe biden or anyone else, and election-year nominees, the last year of president reagan's term -- in the last year of president reagan's term, the democrats were in charge of the senate.
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it was a presidential election year. he was going to be leaving the presidency, and we voted on a supreme court nominee of president reagan's. talking about bipartisanship, every single democrat voted for president reagan's nominee in a presidential 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 a lot more important than you or me or anyone else in this room. the president has a constitutional obligation to nominate when there is a vacancy in the supreme court. we have a constitutional -- is this not working? is that better?
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ok. as i mentioned earlier, we talk about what happens in presidential election years. the democrats were in control of the senate. president reagan's last year in office, a presidential election year. every single democrat voted for his nominee to the supreme court. i know my good friend from iowa has said that somehow this effort is directed at him. i say it is really not about him or any one of us. it is about the constitution, which is more important than any one of us. the oath the president has taken
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to uphold the constitution, which requires him and it requires us to exercise our consent to vote yes or no, but we cannot sit here in closed-door meetings and agree that we will vote maybe. the american people want us to do our job. we are paid to do our job. every single day, we are paid to do our job. voting maybe is not an option. i say to the chairman, senator grassley, we have been friends for a very long time. i hope while we disagree on this we will continue to be friends. we have worked together on legislation and oversight matters as well as nominations. he is absolutely correct. we have cosponsored a lot of legislation, and we tried to do that in the best tradition of the senate. he is a man who embodies those traditions and the courtesies of
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this body, which is something that is unfortunately lacking, but those of us that have been here for a while appreciate it. i was disappointed two weeks ago when the majority leader was not on this committee, that the judiciary committee has unanimously recommended that the next supreme court nominee will not receive any consideration this year. there was no unanimous recommendation. it is our first meeting to consider since the untimely passing of justice scalia. in fact, the first member of congress or anybody who said anything about it very publicly was the republican leader who said there will be no replacement. a lot of us would at least have like to have a memorial and a burial of the justice for that to be started. but this is our first meeting to
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consider anything on this. our committee has not had the opportunity to discuss how we would proceed, but while the majority can determine what they unanimous,was not and contrary to what republicans said that it was a unanimous decision by this committee, it was not. it was not. it was not. that was just blatantly false. unanimous require all of us. we were not part of that closed-door meeting. i want to work with you as all previous chairs and ranking members have for a supreme court nomination. i know you want to conduct the work of this committee fairly, and i hope we will return to the practice of working together for decisions are made how everything. we may disagree with each other, but the tradition has always been that that chair and the ranking member, and i have been membersir and ranking
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on these kinds of major decisions of this committee meet together and talk about it first. it's important that 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. we were both elected to serve for six years. not 5 1/4. we are both at the 5 1/4 mark. we were elected by the people of our state of iowa and vermont to serve for six years, and i intend to work every single day. right up to the end of my term. we are confronted with concerns about shutting down the process for the next supreme court nominee, some senators have pivoted to complain about how lower court nominees have been treated in the past. we could go back about these nominees for days. the last few years of president bush's term in office, we confirmed 68 of his judges. i think you have allowed 16 so far.
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there can be no dispute this committee has always treated supreme court nominees differently than other nominees. since i have served in the senate, and i have served for almost 42 years, the senate judiciary committee held hearings on supreme court nominees, has always reported them for consideration. i am glad to see senator hatch here. when i became chair of this committee in 2001 during the bush administration, i and senator hatch memorialized how this committee would continue. via not saying it would change, but it would continue to consider supreme court nominees. in a letter to all senators, senator hatch and i wrote the judiciary committees traditional practices and reporting supreme court nominees. this has been true even in cases where supreme court nominees
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were opposed by a majority of the judiciary committee, even in a case where both republicans and democrats had voted against the supreme court nominee, we said they should considered by the full senate. the republican leader at that time, senator lott, then read our letter into the congressional record to ensure that it was available for all americans to see and every single senate republican and democrat at nobody disagreed with senator hatch and i had said. it showed the long understanding of this committee's commitment to an open fair process for supreme court nominees. this has been our committee's practice regardless of who held the gavel and who was in the white house. last week a distinguished group of scholars wrote, the constitution gives the senate every right to deny confirmation to a presidential nomination
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but the denial should come after the senate deliberates over the nomination which in contemporary times includes hearings in the judiciary committee, open hearings, and full debate and vote on the senate floor. anything less than that is a serious and unprecedented breach of the senate's best practices and noblest tradition for much of our nation's history. i ask unanimous consent that this letter be included in the record. senator grassley: without objection, so ordered. senator leahy: i love the senate. i love the tradition. i believe the senate should be and can be and at time has been the contents of the nation. we are elected for a six-year term. every one of us takes that oath to uphold the constitution, so help me god. public confirmation hearings, the senate has never denied a
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supreme court nominee a hearing or a vote. you cited comments from vice president biden. 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, where i would say this -- the actions continue to speak louder than any words, our actions speak louder than words, and our actions show we have always -- we have always done the hearings and had votes when there has been a supreme court vacancy. now, that's what both senator hatch and i said in our letter and the importance of the supreme court in our constitutional democracy cannot be overstated, nor can the responsibility of this committee to fairly consider the next nominee to serve in this court. i hope we take a deep breath,
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return to 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. the president will nominate soon a person. he will fulfill his duty that he swore to do, "so help me god." after he does, i would remind everybody the consideration of a supreme court nominee is a constitutional duty of each and every senator. i hope they are all going to do our job here. the one that we took an oath "so help me god" that we will do. thank you, mr. chairman. senator grassley: senator hatch. senator hatch: thank you, mr. chairman. this is an interesting meeting as far as i'm concerned. the question regarding the vacancy created by the death of supreme court justice antonin scalia of his when, not whether the senate should consider a nominee. democrats say that the constitution answers this question for us requiring a
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prompt hearing and floor vote whenever the president chooses a nominee. anything else they say would not be doing our job. mr. chairman, rarely have so few words been so misleading for so many. the constitution gives the nomination power to the president and the advice and consent power to the senate. the constitution does not tell either the president or the senate how to exercise their power. the senate must decide how to exercise its power of advice and consent in each situation and has done so in different ways at different times under different circumstances. of course, the democrats know that this is true, and their past positions and actions confirm it. during the 102nd congress, joe biden denied a hearing to dozens of judicial nominees and recommended that if a supreme court vacancy occurred the appointment process should be deferred until after the
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election season was over. between 2003 and 2007, democrats on and off this committee voted dozens of times to deny any confirmation vote to republican judicial nominees. in 2005, harry reid said that the constitution does not require the senate to vote on a president's nominees. when he chaired this committee under a republican president, senator leahy denied a hearing to dozens of nominees who were never confirmed. in 2007, senator charles schumer said that the senate should not confirm supreme court nominees for the rest of president bush's second term except under what he called exceptional circumstances. democrats opposed judicial filibusters under president clinton. supported them under president
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bush and abolished them under president obama. democrats had their reasons for these statements and actions, and i'm sure that each time they believed that their position was legitimate. those statements and actions are incompatible with the newly minted position that the congress requires prompt hearings and floor votes for all nominees. if what democrats said today is true, vice president biden in 1992 advocated violating the constitution. many of my democratic colleagues voted repeatedly to violate the constitution, and the minority leader was flat wrong in 2005. if that's the case, democrats' liberal allies are equally confused. we received a letter signed by left-wing groups claiming that the constitution requires "timely hearings and votes." some of these same groups publically advocated denying
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floor votes to judicial nominees. we received a letter signed by law professors claiming it is the senate's "constitutional duty" to hold a prompt hearing and timely floor vote on a nominee for the scalia vacancy. i'm well familiar with law professors in this country. and they make a lot of different claims. i'm not aware that any of these professors objected to the minority leader's assertion that the constitution does not require the senate to vote on a president's nominee. did any of these professors complain when senators to find read, clinton, biden, and obama voted over and over to prevent any confirmation votes to republican judicial nominees? of course they didn't. this is a political stunt that is seriously misleading the public and law students, i might
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add. the constitution has nothing whatsoever to do with it. mr. chairman, neither the constitution nor the other party's political priorities to --priority dictate priorities dictate how the president or the senate exercise their respective powers in the judicial appointment process. i believe there are compelling reasons for deferring the confirmation process regarding the scalia vacancy until after the next president takes office. finally, i would remind those who say that the constitution requires a prompt hearing that this committee was not created until 29 years after the constitution was drafted. we have no more a constitutional obligation to conduct the confirmation process in a certain way than democrats had when the partisan roles were reversed. enough of these absurd claims about when the constitution -- about what the constitution plainly does not require. if my colleagues want to argue
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that republicans today should not have the same ability to structure the confirmation process as democrats did in the majority, then they should make that case. they know the american people would not accept such a disingenuous position. mr. chairman, i'm really concerned about this because it just seems to me that this is a presidential election mess. i've never seen it worse. i've never seen the country more at odds. and more on edge over a presidential 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. at least that's the way it looks to me. and that is based on only 40 years here in the senate. 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
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of the united states of america and that we have every good reason to not do it under these circumstances. i just hope that we can all work together in the future and this will all resolve itself as it should. senator grassley: senator feinstein. : thanks verytein much, mr. chairman. mr. chairman, my words are said this morning with considerable disappointment. i have great respect for you, mr. chairman, and for most of my colleagues on the other side. let me begin with some history. [laughter] >> some of those on the other side would say the same thing about their side. [laughter] senator feinstein: all right.
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let me begin with some history. i think it is important to realize what that means in terms of history. no supreme court seat has been kept vacant by a senate in action for over a year since the civil war. i think it's important to realize what that means in terms of 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. the nation was about to enter years of brutal civil war. lincoln closed his momentous inaugural by appealing to avoid the bitter conflict that was to come. he said, "we are not enemies, but friends. we must not be enemies. though passion may have been strained, it must not break our
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bonds of affection." he then appealed to the better angels of our nature. despite lincoln's appeal, the war came. the first battle of bull run happened in july 1861 in manassas, virginia, about 32 miles from here. there was real concern that washington itself was at risk. amidst all of this upheaval, there was a vacancy on the supreme court. supreme court justice peter daniel died in 1860. president buchanan sent up a nomination in 1861, 3 months after lincoln's election and only a month before lincoln's inauguration. multiple states had already voted to secede by that point. the nominee, jeremiah black, received a vote on the senate floor. his nomination was rejected by a single vote. president lincoln ultimately nominated samuel miller, an
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iowan, mr. chairman, to fill that seat. miller was confirmed in 1862. mr. chairman, that was the last time the senate kept a supreme court seat vacant for more than a year. so it took our nation tearing apart for the senate to keep a supreme court seat vacant for more than a year. and that was the last time it happened. no supreme court seat has been kept vacant by senate inaction for over a year since that time. so what's happening today is contrary to our committee's practices. even in divided government and election years. also, no nominee for a supreme court vacancy has been denied a hearing since 1916, when the committee first started holding hearings on such nominations. that's 100 years of precedent. we have confirmed nominees in
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presidential election years. most recently a democratic senate confirmed justice kennedy, a republican, in the final year of reagan's term. 14 supreme court nominees in fact have been confirmed in presidential election years. clarence thomas did not receive a majority vote of support in this committee. but still he was confirmed by a democratic senate in october of 1991. after the presidential election campaign had begun. i remember it clearly because it was during my first campaign for this body. in 2001, as senator leahy has said, senator hatch and senator leahy recognized our long-standing practice to give nominees fair consideration,
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a vote in the committee and a vote on the floor, and this was done in the joint letter that senator leahy referred to, and it was entered into the congressional record for all time. that was an agreement made in the democratic senate when a republican, george w. bush, was in the white house. it is this body's job, this committee's job, to look carefully at the nominee and give that person a fair hearing and a vote. the effect of this obstruction is likely to leave the court with only eight members over two terms of that court if you actually think about the timing. what does that mean? out of 8000 petitions for review, the court gets a year, this is according to the supreme court's website, the court takes about 80. it chooses those primarily where there is a disagreement among lower courts about important
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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 request -- requests that do not have the luxury of of course, the court isn't 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 was divided 5-4 frequently. tie votes in the supreme court do not settle the dispute heard by the court, and they don't 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
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confirmed, "every day that passes with the supreme court below full strength impairs the people in that crucial body." supreme court justices themselves including scalia and request have noticed the dangers of an evenly divided court. justice scalia decided not to recuse himself in 2004, saying that if he did, "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." that should be sobering. scalia quoted the court's recusal policy, signed by six republican appointees stating that "even one unnecessary recusal impairs the
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functioning of the court." we have gone through a lot of tie votes and we have those. when you go through them, you see the impact of a 4-4 divided court. let me give you one example. i have picked it because it involves the ninth circuit. in 2008, the ninth circuit decided a case called united states versus floris vr. the question was whether a person born abroad to an unwed u.s. citizen parent was a citizen of the united states. the law differed. -- the law differed depending on whether the citizen parent was the mother or the father. here's how the ninth described the issue.
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"if a united states citizen father had a child out of wedlock of broad with a non-united states citizen mother, the father must have resided in the united states for at least five years after his 14th birthday to confer citizenship on his 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 child's birth to pass on citizenship. it is this difference that florez v. vr claims makes an impermissible classification on the basis of gender and age. the ninth concluded that this disparate treatment was permissible under the constitution and so ruled against the individual claiming u.s. citizenship. the supreme court accepted the review in the case. but in 2010, it deadlocked 4-4 because justice kagan was
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recused. that left the ninth's decision in place in california, arizona, and other states in the ninth, but did not set a nationwide precedent. five years later in 2015, morales santana v. lynch, the second circuit came out the opposite way. morales argues that this violates the fifth amendment guarantee of equal protection and that proper remedy is to extend to unwed fathers the benefits unwed mothers receive under the statute. santana derives citizenship at birth through his father. so you see, a tie vote can have
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real significance. here's the bottom line. even today in the situation presented by this case, children in one judicial circuit may not be citizens, but in another circuit they would be. that's not the fault of the child. it's all because of how the law treats parents of different genders. and it makes no sense when the issue could have been resolved six years ago. let me just conclude by saying that the path republicans have put us on goes against more than a century of history. it's going to impair the functioning of the supreme court. and no doubt members are going to point that out. i believe it's going to have most importantly real impact on people and real businesses in
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real cases both this year. we all know the other side of the 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 angels of your nature. when there is a nominee, do as we have done in the past. give the nominee careful consideration. meet with the nominee. ask the nominee questions. hold a hearing. and then hold a vote both here on the floor. vote no if you want. but let's have the process that is our tradition. that is our job. thank you very much. senator grassley: thank you, senator feinstein. in 1969in on history,
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and 1970, the court had 452 days of vacancy when justice ford is retired. tis retired.or and in 1955, justice jackson took a one-year leave of absence to service chief prosecutor at the war crimes trial in nu nuremberg. senator sessions: thank you, mr. chairman. even our republican colleagues, there is a history here. our democratic colleagues have not had a consistent principled history. all of us have dirty hands. i remember when clinton was president, a nominee came up in
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california that i helped. trent lott fired a cloture on forward, and i voted for cloture. because we did not believe in filibusters. it was only after president bush won and the republicans had a slim majority in the senate that the democrats held those nominees systematically, and then they quickly got a majority. nobody moved. none of them. that is not true. he nominated 11 judges for the court of appeals. i'm talking about the court of appeals nominated 11. two of them were renominations that president clinton had put up. and we confirmed those quickly. everybody else was blocked. it was two or three years. then when we got the majority back, it was filibustered. it went on and on until finally the american people got frustrated with it. they wanted judges who would
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follow the law, good judges they could trust. senator graham and others and the gang of 14, they cut this deal and said, we will not filibuster anymore except in extraordinary circumstances. we can vote, but we won't filibuster except in extraordinary circumstances. we debated it unopposed. i didn't previously believe in filibusters but i will use the filibuster only in a restrained way when i feel it was really important. i have tried to adhere to that, and i think republicans have. and then what happened? we get back in the majority and they are unhappy that the republican majority was not willing to fill judges for the d.c. circuit that had no need whatsoever. they had the lowest case load by far of any court in america and we said we are not going to affirm those.
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had alreadysley blocked president bush from filling one. we worked together and blocked it and had it sent to some other court like the ninth circuit because they had a shortage. i changed the entire rule again. now they say you cannot filibuster. all of us are less than perfectly consistent, i will knowledge. -- i will acknowledge. i want to say first and foremost, republicans have been more principled and more responsible in handling judicial nominees than our democratic colleagues. they have not hesitated to change any rule to advance the immediate agenda they have. i just saw the poll in "the wall street journal" today. 62% of people say the democrats would do the same thing that we are doing in this
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circumstance. late in a campaign year, no nominee having been put forward. and they say the democrats wouldn't move the nominees either. of course that's correct. if you took a poll of all senators and they would tell you the truth, it would be 100% in the senate. under these circumstances, it is just not likely that any majority in the senate would confirm another nominee at this late date. president obama has gotten two of his nominees confirmed to the court. we had hearings on those, full debate. people cast their vote. that's the way it went. i wanted to say that. a majority of the united states senate does not want to move forward with this nomination. a majority of the senate does not want to move. it's not a minority filibuster. it's a majority of the senate that decided not to move forward to let the next president who will be taking their case to the
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american people and certainly will be discussing what kind of judges they would like to see on the supreme court to replace the fabulous, grade justice scalia. who will replace justice scalia will be decided in the next election. the court is not going to cease to function because it's 8-8. colleagues, i am fully aware that my colleagues want to make a political point and push this issue. but it's what the senate would do. this is not an unreasonable position. i think we have to go back to 1888 before somebody under these same circumstances was confirmed late in the session. mr. chairman, you know these rules. you know the history of this. senator hatch knows the rules.
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he has chaired this committee many, many years. i am totally convinced that this is what the democrats would do if they were in this situation. this is what you would expect the senate to do. let the american people have a voice in who would replace justice scalia next year. thank you very much. senator grassley: senator schumer. senator schumer: thank you, mr. chairman. i would like to thank you for allowing these remarks. i want to thank the ranking member from vermont for his able remarks and associate myself with his and with senator feinstein's outstanding presentation as well. i appreciate also the chairman moving forward with nominees today as well as two bills before us. adam walsh and avante's law are laws that i care deeply about. i appreciate the partnership you mentioned earlier on those efforts. but i have to say that the work
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of this committee and congress will be shamefully incomplete if this committee refuses to do that important job of weighing a supreme court nomination. we are given a job to do by the constitution a job theted states, american people want us to do. and the chairman of this committee is saying that for the next year, the judiciary committee will not do its job. my republican colleagues claim this isn't about politics or the fact that they don't like this president. they say, "the american people ought to have a say in deciding who will appoint the next justice." "they say let the people decide." the people have decided. if you ask the american people, they will tell you. they want a hearing in this committee. the data is overwhelming. a cnn poll last week found 58% of americans want to see the president nominates someone to the court this year and have the
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person have a hearing. just yesterday "the wall street journal," hardly a liberal journal, found that 55% of regular voters disapprove with the republican decision to block a court nominee. "washington post"/abc poll, 63% say the senate should hold hearings. these numbers hold steady in red states, blue states, and purple states. a ppp poll found clear majorities in iowa, arizona, missouri, north carolina all favored the filling of the vacancy. so i would say to my colleagues, yes, the people have decided and they are saying to the republican majority, do your job. the american people are speaking loud and clear and they are saying to the republicans just that, that we have a constitutional responsibility, it's up to this committee to do a job. the chairman has made a decision unilaterally that this committee
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will have no voice and no ability to examine a nominee's record and qualifications and no ability to perform the duty of advise and consent spelled out in the constitution. it's a shame. because even the chairman admitted this wasn't the consensus view at first. last week the chairman indicated there are members of this committee's majority who might like to see us hold hearings. i suspect that is still the case. he said, "as any chairman ought to do, i went to the members of my committee. they all agreed with me for different reasons, not just because i'm chairman. all signed the letter declaring there would the no hearings." bottom line, some have reluctance, but all signed. i have a great deal of respect for my friend from iowa, his ability to lead the committee's majority. but i also believe the right of each member of the committee to
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hold his or her views. and i suspect there are some in this room who want to debate. now, senator tillis said he likes a good scrap. let's have one. let's have a debate. after the president makes a nomination, let's have the kind of serious, long, detailed, thorough debate that we have had in the past. and let's not forget, the last four justices who were nominated got bipartisan support to get on this court. it is not despite the divisions we have. we are able to have serious hearings and come to a conclusion in a bipartisan way. now, i want to add one more thing.
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we just noticed a hearing next week, a debate on a constitutional amendment requiring a balanced budget. i'm happy to have it. we've been through that one before. i can ignore that this post hearing is a convenient political cover for republicans backtracking off their promise to do a budget. i'm happy to have a debate. but i must say, before we start trying to edit the constitution, don't you think we ought to follow it? this committee, one of the original 11 standing committees of the senate, holds a profound and storied place in the history of the senate. it has resisted the territorial claims of other chairmen, the whims of senate leaders, even presidents of the same party. the waves of politics and pressure have broken against the walls of the senate judiciary committee time and time again, not always in a noble fashion. but nonetheless, this committee
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and the senators in this room have a special obligation to consider that legacy. not once since this committee again holding hearings on supreme court nominees a century ago has the committee refused to report a nominee to the floor for the consideration of of all 100 senators. there's lots of back and forth. they are on both sides. everyone has said a bunch of things. but let me repeat, not, once, not once since this committee began holding hearings on supreme court nominees a century ago has the committee refused to report a nominee to the floor for consideration of all 100 senators. i know the chairman from iowa holds the same reverence that i do that the ranking member does for the reputation of this committee.
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so i asked him to think on that legacy. as he walks in lockstep with the majority leader and republican presidential candidates to the decrement -- detriment of this committee and the constitutional duty that we as senators all have. i thank the chairman for his courtesy. >> there was reference to polls. we all quote polls. you obviously know that they can be manipulated depending on who's asking the questions and what the question is. i happen to believe that we are supposed to make decisions they started what's right, not based on polls. i think that the people on the other side of the aisle right now, there happens to be a call that 61% of americans believe that we ought to continue immigration into the country -- ought to be debated. i think the other side isn't letting that affect their immigration policy. go ahead.
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senator graham: i can tell you one person who doesn't believe in polls and that's hillary clinton. she was 21 points ahead of bernie in michigan and lost. according to the real clear politics page. so -- the moral high ground is a shaky place to be in the senate when it comes to judges. so i won't go there. it is fascinating. a long life allows you to be lectured to regarding fairness about judges from people who i think have been exceedingly unfair. and i like you all very much and i will work with you where i can, but the senate is evolving in a very bad way. we don't need to go back to the civil war to find out where we are headed. we are headed to changing the rules probably in a permanent fashion. when president bush's nominees were filibustered en masse, there was a temptation on our side to do the nuclear option.
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i was one of the gang of 14 that said, let's not go down that road. only three of us are left and we found a way to confirm most of president bush's nomination. he lost a handful. i got the crap beat out of me at home. when i told that consequences we don't elections, want to change the 60-vote rule. nobody wanted to hear that until we lost. and the very same people are beating the crap out of me now. so i know what i'm getting. here's what's going to happen. in the unlikely event we lose which is hard to believe, given the dynamic, but just in case we
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lose and i know that seems almost impossible to imagine, hillary clinton is going to be president, unless bernie keeps doing well and something happens i don't know about. let's just assume for a moment she is president. i'm telling everybody on my side, she's going to pick somebody probably more liberal than president obama is going to send over in a few days and i'm going to vote for that person if i think they are qualified. i voted for sotomayor and kagan not as i would have asked them but because the president deserves the right to pick judges of their philosophy and that goes with winning the white house. why do i feel comfortable doing this? the history of the senate is pretty clear here. the current vice president in 1992 argued for what we're doing. the sitting president of the united states filibustered two republican supreme court justices. so when he called me, i said, is this the same guy who filibustered alito and roberts? you are asking me to do
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something you can do yourself? i never thought you were fair to our judges. it's not about me paying you back. it's trying to have some process i think will stand the test of time. this will stand the test of time. this is the last year of a lame-duck president. and if ted cruz or donald trump get to be president, they have all asked us not to confirm or take up a selection by president obama. so if a vacancy occurs in the last year of their first term, guess what -- you will use their words against them. i want you to use my words against me. if there is a republican president in 2016 and a vacancy occurs in the last year of the first term, you can say lindsey graham said let's let the next president make that nomination and you can use my words against me and you would be absolutely right. we are setting a precedent here today, republicans are, that in the last year of a
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lame-duck eight-year term that you cannot fill a vacancy in the supreme court based on what we're doing here today. that's going to be the new rule. when you all change the rules about appellate court judges to get your way, i thought it was a really abuse of power. and what you have done is you have made the caucuses, republican and democratic caucuses, are now not going to have to reach across the aisle when it comes to appellate judges to get input from us. what does that mean? we will pick the most hardass people we can find. and there will be someone in the conference to vote against that person. you will have the most liberal members of your caucus pushing you to pick the most liberal judges because you don't need to have to reach across the aisle to get their input. and we will do the same. so over time, the judiciary is going to be more ideologically driven because the process in this and it does not require you to get outside your own party.
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so i will be fighting talk radio when someone on my side puts up a nut job. and they will. and i will fight it if i think they are truly a nut job. and it is going to happen on your side, too. so this is where we find ourselves. i'm saddened by the fact that the senate is gone down the road we've gone. i'm very supportive of what you are doing mr. chairman. i don't think you are doing anything wrong. but i want the members on this side to know, if we lose this election, my view of what the president to come will be able to do is the same. if it is hillary clinton or bernie sanders and they send over a qualified nominee, i am going to vote for them in this committee and on the floor, because i think that's what the constitution envisioned by advise and consent. there is no road map of when to do it. the senate has always done what it thought was best for the time it was in. what's best seems to be to play
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politics with judges on both sides. y'all started a new game when you changed the rules. there will come a day when you have a republican or democratic president with a republican or democratic senate and they are going to change the rules of the supreme court and you are going to get frustrated. so it's just a matter of time before the senate becomes the house when it comes to judges, and i really hate that. senator grassley: let me ask all the members. i said we probably ought to stop at 11:40 to vote. if there's a desire to do what's on the agenda, keep that in mind because i would like to move along. senator durbin. senator durbin: thank you very much, mr. chairman.
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i have served on this committee for 18 years. i consider the senate judiciary committee to be one of the major committees of the senate. and it has played an important role in history of our country. we are now faced with an historic decision and i hope we get it right. i would say to my friend acknowledging the feinstein observation -- i would include senator graham as one of my friends and personally i respect on this -- to say that if we make a mistake today, we will make it again in the future, doesn't give me any comfort at all. if there's one thing that our pollsters that we pay a lot of money for on both sides of the money for on both sides of the political equation will tell us, it's the disappointment and anger people feel about us, about congress. maybe we do two points better as democrats than republicans, but i don't take any comfort in that nor should we.
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the question is what we will do to either confirm those suspicions and hatred or to change them. and we have a chance right here and now. let me say at the outset that senator grassley, my neighbor in iowa, has been my fellow traveler for over 30 years. we have spent more time on airplanes together and in airports than most of the members. we have come to know one another under those circumstances and we have come to work together on a lot of issues. the first time i came to this committee we worked on bankruptcy reform together. we were working on important issues together. i am hopeful we can produce something bipartisan again in cooperation. i also think that what brings us together is the feeling that there is a midwestern attitude toward things.
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even if we disagree, we can be respectful to one another and try to find common ground. i think that is one of the issues in this debate about the filling of the vacancy of the supreme court. i think there is a basic feeling of fairness where we live is, that flat and fertile part of america where you can see a long way in every direction. there's just a feeling about fairness to your neighbors, even to those who are not your friends. that's what should dictate what we try to achieve here. i don't question at the end of the day -- it is still going to be 54 republicans and 46 democrats voting on any nominee sent by the president. and if that nominee is suspect or controversial, there may not be any republican votes for that nominee. i understand that reality, particularly in an election year.
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but what i don't understand is this notion that for the first time in the history of our country, this senate judiciary committee will not offer a hearing on a nominee. they've gone so far as to say that some members have said publicly, i will not even meet with this nominee whoever it may be. and then, a statement made by one of my friends on the committee, warning, warning people who are being asked to consider being a nominee, be prepared. you are going to be treated like a piñata. a piñata. we all know what that's about from birthday parties, wherelittle kids and blindfolded, given a bat, and told, beat this papier-mache animal to a pulp until all the candy falls out. i would hate to think that this process is being likened to a
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piñata contest where we are blindly going to swing at whoever that nominee or pinata happens to be. i don't think we should warn people off of the possibility of serving this nation on the highest court in the land for fear of what we are going to do to them. and i heard it again today from the chairman. he is trying to protect the potential nominee from the hot boiling cauldron of this committee. who's turning up the heat? we have the responsibility to be fair. yes, of course, to ask the important questions, to go through the hearings. but we have the responsibility to be fair and this will be the first time in the history of the united states, the first time that this committee and the senate will deny a hearing -- a hearing to a nominee sent to us by a president. and has been said over and over
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again, deny a vote. that is hard to explain. in fact it is so hard to explain, the american people have rejected it. we can argue about polls. but i can tell you that the polls show that even among republicans, it's 46 in favor of a hearing and 49 against. they get it. they get the basic fairness of the question that is before us. let me also say that there exists for this committee the creation of the chairman and his staff a website, and this website has a page on the supreme court of the united states, and i would like to read from our website of our committee, a website that has been created by the chairman of this committee, and it reads -- "when a vacancy occurs in the supreme court, the president is given the authority under the constitution to nominate a person to fill the vacancy.
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the nomination is referred to the united states senate, where the senate judiciary committee holds a hearing, where the nominee provides testimony and responds to questions from members of the panel. traditionally, the committee refers to nomination to the full senate for consideration." this is our website. we have just announced on this website that this is the practice of this committee. and yet the announcement made and the letters signed by the republican senators on this committee is in 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. first, ask unanimous consent to make a motion very briefly, very directly, that says, it is the sense of the senate judiciary committee that -- and then to
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read directly from our website -- "when a vacancy occurs in the supreme court the president of the united states is given the authority under the constitution to nominate a person to fill the vacancy, the nomination is referred to the united states senate, where the senate judiciary committee holds a hearing where the nominee provides testimony and responds to questions from members of the panel. traditionally, the committee refers the nomination to the full senate for consideration." so i would ask you to miss consent to offer a sense of the senate judiciary committee that this is our stated policy. i would like the objection noted for the record which member objected. senator grassley: senator vitter is the objector. if you did not yield the floor, you may proceed. , it is durbin: senator time to change your website.
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i yield the floor. senator grassley: senator it is really breathtaking. i do believe the debates we are having today is an important one, and we should welcome it. i think it is important to have this debate in public and visible to the american people. the question is simple. senate, the majority of whose members were elected as a check on a president with little regard for congress, or the restraints placed upon his office by the constitution confirm a supreme court nominee of that president in the waning months of his office, when that thenee would likely change ideological balance of the supreme court of the united states for decades?
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justice scalia served for 30 years. clearly, the stakes are high and that is why we have decided the american people should have their voices heard in the selection of this next lifetime appointment. the senate has clear constitutional authority to demand this and my republican colleagues and i do intend to do the job we were elected to do on the people's behalf. it is fair to say our friends across the aisle do not like this idea. but of course, they are feigning a lot of outrage. we know they would do exactly the same if the shoe were on the other foot, exactly. we know that because they have told us. mr. chairman, you talked about what now vice president biden said when he was chairman of the judiciary committee years ago but you don't have to go back tot far to find the example find a comment from the senior senator from new york, senator
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schumer, who said 18 months before president george w. bush left office, i will recommend to my colleagues that we should not confirm a supreme court justice except in extraordinary circumstances and said you should have a presumption against confirmation. ,hen there was senator reid former majority leader, now the minority leader, during the bush administration stated, the duties of the senate are set forth in the constitution. nowhere in the document does it say the senate has a duty to get presidential appointees above it. while i find myself disagreeing often with the democratic leader, he is absolutely correct . there is no duty, the president can make a nomination, and the senate can grant or withhold consent to that nominee. then it was noted by senator graham that the president
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himself, when he was the united states senator, filibustered then justice samuel alito. so our democratic colleagues , and simplerulebook justice requires that they abide by it. that ourds claim position, the humble proposition that the people should choose, who makes that selection was unprecedented, but that is simple enough the case. no president has filled a vacancy with divided government as we have today in well over a century. that was the tradition. more to the point, that is a rich criticism coming to our friends across the aisle. the president for turning supreme court nominations into scorched-earth lyrical battles as they did with eminent a qualified nominees like judge bork, or now justice thomas, what was the precedent for that?
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there was none. where was the precedent for the serial filibusters of appellate judges in the bush administration that have already been commented upon. there was no precedent for that. our democratic colleagues rewrote the rulebook. where was the precedent last congress when democrats changed the senate rules by breaking the rules, something we call the nuclear option around here for shorthand, to deprive the republicans of the same judicial filibuster that the democrats employed with abandon, in order to do what? tupac the district of columbia court of appeals. --e call it the most second the second most important court in a nation, from which many supreme court justices are nominated. no precedent for what the democrats did when they rewrote the rulebook. our friends on the other side of the aisle have clearly established new rules for
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republican presidents, and they have time and again to side -- devised new schemes when they were in control. well, every action has a reaction. that is physics. in this case, it is simple justice. they have made their bed, so let's dispense with the outrage. the american people are well into the process of deciding who the next president of the united states will be. they can choose to extend eight years of anemic economic growth, national weakness and disdain for the constitution and other institutions that have made our country great, or 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 the path we take and the people should have a voice in that decision, too. thank you, mr. chairman. thank you.buchar:
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i just want to step back a little on this. i have thought many times about what i would do, if we were in charge, the democrats were in charge and we had a republican president. as a lawyer, i have talked to my law professors about this, and i would feel we have an obligation, and that is what i would do, and what i would do in the future. when you look at the language of the constitution as we know, it says the president shall nominate someone, the senate shall advise and consent. i put together a form of law professors about a week or so ago. said the framers did not contemplate. he was looking at the original tent. the framers did not contemplate the use of the senate's advice and consent powers solely to run out the clock on a presidential appointment. as alexander hamilton speculated
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in 1976, rejection of a nominee could only be made to make lace for another nomination by the president. i understand that people may not vote for whomever the president nominates. it has been my view that he has put a very qualified people, but the constitution and its language did not anticipate that we would sit there and wait a year. in fact, when you look at the know, ins well, as we the last 135 years, no president has been refused a seat on a nominee for the court. you have to go back to the civil war to find a time when the senate did not do its job and the senate did not move on a nominee for over a year. this was through the vietnam
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war, through times of great tumult, civil war, civil rights protest. you have to go back a long time. that is why i concluded after looking at this, if i were in your shoes, my friends on the other side of the aisle, i would've allow the hero to go through. the other piece of it that goes beyond the things that i would most .2, which is the wording of the constitution, which is always important, the fact that we have history as an argument here that i think is strong in favor of allowing a hearing to go forward. we also have how we function as the senate. i have been proud of the way that our judiciary committee has handled nominees. i know people go back and forth about how many have gotten done, but i think the nominees i have put forward on the federal district court have gotten a fair hearing. two supreme to the
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court nominations, senator leahy was german then. we had republican senators who took part in that, not many of them voted for them, but i remember lindsey graham's lying when he said i am john mccain's best friend, this is not the nominee i would've put up, but i believe this person is qualified. hearings, while people have strong views on either side, the process work. we had a process, we had a hearing of the nominee. not at all with unanimous votes from our friends on the other side, but a process we could be proud of and i felt was fair and moved along in a fair manner. you look at the existing justices, the longest that any of them went from the beginning of being nominated to the end of confirmation, 99 days, that is clarence thomas. so you have a history of those on the court now. you have the history of our country, you have the fact that
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the senate's 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. that is our job. we have to do our job. was a shock when justice scalia died, a shock that many of my friends at the university taught with him, were friends with him, although they did not necessarily all have the same view, but it happened. is question for the senate how do we respond when that happens? i say, do our job, follow the law, follow the constitution, and history that backs it up. vitter: it looks like i have a prior responsibility. i like to have my remarks entered into the record. senator grassley: thank you, they will be.
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senator vitter: thank you for holding this important discussion. instructives really and somewhat ironic, given it is the justice scalia vacancy, to hear all of these arguments from the left, that the constitution requires, demands a hearing and a vote in a certain timeframe. most outside of groups on the left are clearly making that argument. think it is sort of ironic, given we are debating a vacancy 'seated by justice scalia death, because justice scalia --ght us for and foremost first and foremost, read the words, don't just make it up as you go along. do not use these big tools like legislative history to get to whatever and you want to get to. i think it is instructive because the left wants a new supreme court justice who will
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not read the words, who will make it up as they go along and get to a preordained stopping point. however, they can get theire. again, words matter, and the constitution, and the other relevant words, in this case, the senate rules, are clear. they do not require action on any particular timeframe. mr. chairman, as you know, the int to consider as simply article two, section two, the president shall nominate and with the advice and consent of the senate, shall employ -- a point ambassadors, judges to the supreme court, and all other offices of the united states whose appointments are not herein otherwise provided for, and which will be established by law.
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that is what it says, pure and simple. does not talk about any timeframe, does not talk about any required action. which governs our other senate rules, the constitution makes it clear the senate can establish rules to follow within the bounds of the constitution. rules, the only thing they have to say about the timing of action is when a vote will not occur. it shall not be put on the same day in which the nomination is received, nor on a day that it it can ben which reported, unless by unanimous consent. that is senate rule 31.1. and then there is 31.6, which is very relevant and instructive. nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being made to
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the senate by the president. explicit that no hearing or action is required during that session now, everybody here has voted for those rules. i don't know why folks taking a contrary view in the minority, didn't change that rule, didn't vote no to that rule or aren't proposing a change that rule now. everybody here voted for that rule. and again, these arguments somehow that the constitution required us to act a certain way or a certain timeframe just isn't true. and in honor of justice scalia, i do think we need to read the words first and foremost. and again, i think it is instructive. that is really what this debate is all about. are we going to have a new
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justice who reads the words and applies them as written, or are we going to have a justice who helps make it up as you are she goes along, who legislates from the bench, tries to get to a certain and point using whatever arguments they have at his or her disposal. and of course, as had 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 reid, senator schumer. senator schumer with a lot farther back than where we are now. he said 18 months before the end of the bush presidency, no supreme court justice should be confirmed, except under extraordinary circumstances. i'm happy to live by the schumer
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rule. this is not an extraordinary circumstance with an election coming up. i would defer to the people. so the question is, what is the right thing to do moving forward ? i am very come to the with referring to the people and empowering citizens, putting them in charge. that is certainly what my constituents want in louisiana. they are crying out in frustration of there not being in charge of washington regularly, ignoring their wishes of this trend. legislating from the bench and making it up as they go along, continuing. they want a voice in this, and they want a voice to be able to stop this. so i defer to the people, we have a unique opportunity to do that with this very important presidential election before us.
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i often think in virtually every presidential election that the most important issue in the election, which gets little or no attention, is supreme court appointments, because that can impact for decades to come. we have an opportunity this year where that won't be the case. where hopefully, it will be front and center, we will have an important debate about a proper role of the supreme court, the proper way for judges to make the decisions, namely to read and apply the law as written. and certainly, my constituents in louisiana law that. that.t they want to have a leading voice. they want to be in charge. the great majority of them
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strongly object to the trend of nine, or really five, unelected lawyers making huge decisions for society, which are not mandated by the constitution. leadership,ate your i strongly support the path moving forward with adopted, and i vote for putting people and citizens in charge through the presidential election. i think it is important, and a somewhat unique opportunity. thank you. leahyr grassley: senator has a statement i want to put in the record. senator franken. asktor franken: i would senator vitter if he could stay, so i could speak. do i have tor: stay for a quorum? senator grassley: we will give
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unanimous consent to speak, even if he goes. senator franken you can get them in the record or something. this idea of nine unelected making law from the bench, that is what we have seen with the roberts court. this is one of the most activist courts we have had, and senator vitter has not been on this ,ommittee until this congress but my goodness, how many times have i spoken to this? when we had the sotomayor hearing, it was my fifth day in the senate. this is an activist court. he was talking about the irony on justice scalia. we had 100 votes in the voting rights act.
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unanimous vote by the united states senate. and what did justice scalia say? he said that, well, the senators voting for him because it was named to the voting rights act. remember that? senator hatch: he had a half-hour argument towards hundreds of hours of debate. senator franken: i mean, this is insulting. to hear that. it is just insulting. now, let me say a couple things about some of the things i have been hearing. senator biden, chairman biden, when he spoke, does anyone here know, anyone, chairman, do you know when he spoke? i'm sorry. i apologize. it had to beley:
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june, 1992. senator franken: it was late june as the session was ending. and when he was talking about is somebody resigning to game the system. that is what he was talking about. 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 in its -- an extraordinary situation, he is talking about someone dying. scientists tell us there are 10.5 months left in this president's four-year term. and justice scalia, god bless him, i did not agree with them, i thought he was a very witty, funny guy.
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that is a high compliment coming from me. i value that very highly, not because -- senator hatch: why is that? senator franken: no one dies to game the system. what biden was talking about, as soon as the supreme court session ends, then resigning, in order to game the system. as far as senator obama when he was senator, voting the filibuster alito, that is the 60 vote threshold on supreme court justices that you all so hold so dear. that is what a filibuster is.
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ok, the chair is hearing from someone. senator grassley: can i say something here? we are going to hold this record open, and you can keep talking. i have the vote of 1893. i have not missed a vote since 1993. senator franken: let me just wrap it up. you can listen to it as you go. i think i can get it done. justice thomas was confirmed 52-48 by democratic senate. so i just want to say that some of the things i been hearing today have made me a little bit, it just irritated me a little bit. and i think the chair for his indulgence and all of my colleagues. thank you. >> i seem to be the last person
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standing and i asked to have my remarks included in the remark but i want to be associated with a number of my colleagues including senator feinstein and senator schumer. senator hatch: without objection. we stand in recess subject to the call of the chair. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> in seamy valley, california,
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nancy reagan lying in her pose ronald reagan presidential library in california. her casket covered in white roses and peonies, her favorite flower. this is the second day of public viewing of the former first lady's casket. yesterday, more than 3000 people have visited. today's public viewing will end at 5:00 p.m. eastern time.
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