SUPREME COURT VACANCY

Mr. SCOTT of Virginia. I thank the gentleman from New York and the gentlewoman from Ohio for organizing tonight's Special Order to call on our colleagues in the Senate to do their job and provide their advice and consent on the President's upcoming nomination to the United States Supreme Court.

The Constitution is pretty clear on this issue. Article II, Section 2, doesn't say the President might or the President should. It says the President shall nominate, and by and with advice and consent of the Senate, appoint judges to the Supreme Court.

There seems to be some suggestion that, if it is an election year, he ought to skip that process and let the next President make the appointment. They say there is very little precedence for a President nominating somebody in an election year.

That might be technically correct, but the fact of the matter is that there have been virtually no vacancies that have occurred during an election year. I think the last one was about almost 50 years. In that case, an appointment was made and considered.

That is the process that ought to take place in this case. The rarity of such an event should not preclude the Senate from fulfilling its constitutional responsibility. There is precedent for the President nominating and the Senate at least considering the nomination during an election year.

Now, Justice Kennedy was confirmed in an election year in 1988. That was a 7-month process that began with the appointment of Robert Bork to the Supreme Court. His nomination was considered and defeated.

And then there was the appointment of Douglas Ginsburg. We will just say his nomination went up in smoke. And then we had the nomination and confirmation of Justice Kennedy.

In 7 months, from start to finish, another nomination was made and collapsed and another nomination made, all within 7 months. We could complete that entire process by the first Monday in October, the beginning of the Supreme Court session.

There is no precedence for the President declining to nominate somebody and virtually no precedence for the Senate just to ignore a nomination that is made.

The people overwhelmingly reelected President Obama in 2012 to a term that does not end until January 20, 2017, and we fully expect the President to fulfill his duty to nominate a qualified individual to the Supreme Court to fill the current vacancy.

A failure of the Senate to act this year would be unprecedented. There is ample time for that to take place. The longest confirmation process for a single nominee has been 125 days.

On historic average, it takes 25 days to confirm or reject a nominee. As of today, the Senate has 216 days until the first Monday in October.

If the Senate were to refuse to consider any of President Obama's nominations--and they have said they want the next President to make the appointment--there has been no indication that they will give expedited consideration to the next President's nomination. It could be well into the next year by the time the new Justice is confirmed and sworn in.

Even on an expedited schedule, the new President would not be able to nominate anyone until they are sworn in on January 20. The Senate Judiciary Committee would need time to prepare for hearings, which could not occur until probably February. And then the full Senate would need time to consider the nomination, with the confirmation not likely until probably March.

Now, by March of a term, the term is effectively about over. Most of the oral arguments have already taken place and they are into decisions. You can't participate in a decision if you skip the oral argument.

So not only would the vacancy occur through the rest of this term, almost half of a Supreme Court term, it would be well into the next term and, effectively, through most of the next term.

There is no excuse to leave the Court vacancy open in what then would be a historic new precedence. There is no precedence for keeping a vacancy open that long.

We need the justice appointed. The Senate ought to do its job. The President has indicated that he will do his job, as mandated by the Constitution, and so the Senate ought to just fulfill its responsibility under the Constitution and consider an appointment. Otherwise, you will have a vacancy not only through the rest of this term--and oral arguments have been taking place--you will have the vacancy through the rest of this term. You don't need a vacancy through the entire rest of the next term.

There is plenty of time to consider and vote up or down on a nomination. And the unprecedented vacancy that would occur if the Senate fulfills its threat to stonewall any nomination is just unprecedented.

So I want to thank the gentleman from New York and the gentlewoman from Ohio for giving us the opportunity to just say a word about the importance of everyone in our democracy fulfilling their constitutional responsibilities.

The President shall appoint, and the Senate shall consider, advise and consent, so that we can have a Supreme Court Justice appointed before the first Monday in October.

We have plenty of time to do that. There is no excuse for not doing it, and we expect the Senate to do its job.