ICYMI: Senator Cotton Speaks on the Senate Floor About the Supreme Court Vacancy

“In 2014, the voters overwhelmingly chose to send Republicans to the Senate, making clear their dissatisfaction with this president’s cavalier attitude toward the Constitution and his duty to execute the laws as written.  If the 2014 election meant anything, it meant that Americans do not want this president to determine alone the course of American law for a generation in the Supreme Court.”

In Case You Missed It— Senator Tom Cotton (R-Arkansas) today spoke on the Senate floor about the Supreme Court vacancy. The full text of his remarks can be found below and here. Additionally, the speech is available for download here.

There is a vacancy on the Supreme Court.  And this chamber and the American people must fully understand what is at stake in choosing the person to fill that vacancy.  For a generation, Justice Nino Scalia was the conservative heart of the Supreme Court.  His passing, therefore, has the potential to dramatically shift the delicate balance of the Court.  Should Justice Scalia be replaced by a philosophically liberal Justice, the implications for the rights of Americans and the direction of our nation would be profound.

A liberal Justice may mean that the individual right to keep and bear arms will be nullified, and laws that deprive Americans of the means to protect themselves and their families will proliferate. 

A liberal Justice may mean that the President’s extra-constitutional executive order to grant amnesty to illegal immigrants will be upheld, trampling the separation of powers and the will of the American people.

A liberal Justice may mean that President Obama’s plan to destroy America’s coal industry will survive, destroying thousands of jobs and steady income for American families. 

A liberal Justice may mean that the government will be empowered to force people of faith to violate their dearly held beliefs to subsidize abortifacient contraceptives they abhor.

And these are only the issues we can foresee.  Novel issues that strike at the core of our constitutional order will continue to arise, and how they’re settled will hinge greatly on the next Justice.

Because so much depends on who the new Justice is, we cannot rush into this decision.  Because the law of the land may take such a dramatic turn, the members of this chamber must first get the input of the American people on what the direction of the nation should be.  And because the next Justice will guide American law for the next generation, the Senate should not subordinate our constitutional responsibility to advise and consent on a Supreme Court nominee to a lame-duck President with a stale mandate.

This is the way forward that Majority Leader McConnell and Chairman Grassley have charted.  And it is the right one.  We have an election in November.  In a few short months, we will have a new President and new Senators who can consider the next Justice with the full faith of the people.  Why would we cut off the national debate on the next Justice?  Why would we squelch the voice of the populace?  Why would we deny the voters a chance to weigh in on the make-up of the Supreme Court?

There is absolutely no reason to do so, or at least no principled reason to do so.  And that is why no Congress in our history has ever confirmed a Supreme Court nominee of a lame-duck president of either party for a vacancy that arose in an election year. 

Abiding by this practice this year is even more pressing.  Some of my Democratic colleagues argue that the American people have already weighed in on the Supreme Court pick by re-electing President Obama in 2012.  But I would remind those that make this argument that the Constitution requires two institutions—the presidency and the Senate—to agree upon a new Justice.  And in 2014, the voters overwhelmingly chose to send Republicans to the Senate, making clear their dissatisfaction with this president’s cavalier attitude toward the Constitution and his duty to execute the laws as written.  If the 2014 election meant anything, it meant that Americans do not want this president to determine alone the course of American law for a generation in the Supreme Court.  When Arkansans elected me in 2014 to represent them, they sent me to Washington with the mandate to act as a check on this president.  And I will carry out that mandate.

But many of my Democratic colleagues have come to this floor to demand that the Senate’s longstanding practice of declining to confirm Supreme Court Justices in an election year be discarded and a nominee considered right away.  Perhaps the most impassioned of these pleas comes from the senior Senator of Nevada.

That the Minority Leader would wish to discard a longstanding practice of the Senate—particularly one related to judicial nominees—is not a surprise.  He was of course the person who in 2013 detonated the “nuclear option,” discarding the 60-vote threshold for appellate and district court judicial nominees that existed in this chamber for 200 hundred years.  He did so in order to steamroll the institutional rights of the minority party and pack the lower courts with as many liberal Obama nominees as possible.   

But in terms of dignity and public esteem, such as he had, that ill-considered move cost the Minority Leader dearly.  He could only exercise the nuclear option if he flip-flopped on his prior, vehement opposition to it.  Senator Reid, in 2005, stood steadfastly against the nuclear option when it served his political interests.  He called the nuclear option “wrong,” “illegal,” and even “un-American.”  He was—to adapt a familiar saying—against the nuclear option before he was for it.

In the current debate over filling Justice Scalia’s seat, we’re seeing the Minority Leader perform a similarly brazen flip-flop.  Today, the Minority Leader claims that the Constitution compels the Senate to take up immediately any nominee President Obama sends our way.  But, ten years ago, he sang a much different tune.  The Minority Leader came to this very same floor to speak passionately in defense of the constitutional prerogative of the Senate to defer a vote on a president’s Supreme Court pick.  He forcefully stated that, “Nowhere in [the Constitution] does it say the Senate has a duty to give presidential nominees ‘an up or down vote.’ It says appointments shall be made with the Advice and Consent of the Senate. That is very different than saying that every nominee receives a vote.” 

What’s changed in the ten years since the Minority Leader uttered those words?  Merely the politics of the situation.  I ask, if the current president were a Republican, would the Minority Leader be taking the position he is today?  If the current president were not a fellow Democrat, would the Minority Leader still be inclined to trash the constitutional prerogatives of the Senate and abandon its longstanding customs? 

In light of the “diversity” of the Minority Leader’s views over time, I think it is understandable that questions have been raised over the sincerity of his current position.  In the quiet moments following the rumbling jeremiads that the Minority Leader directs at Republicans on this Senate floor, I think my colleagues can be forgiven if they entertain the thought that the principled ground on which he claims to stand is less than firm. 

In the coming months, there is much work for Congress to do.  We must pass a bill to fund and rebuild our military.  We must continue to improve the conditions for wage growth and the creation of new jobs.  We must conduct stringent oversight to rein in the excesses of a president on a quixotic pursuit of a legacy.  

But with regard to a Supreme Court nomination, the only task for this Senate is this: to patiently wait and listen to what the American people have to say. 

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