Menendez Says Senate Must “Do our Jobs” and Allow Consideration of Obama Nominee for SCOTUS

Menendez Says Senate Must “Do our Jobs” and Allow Consideration of Obama Nominee for SCOTUS

“I ask my Republican colleagues: How long are you willing to deny this President his Constitutional authority to appoint a nominee to satisfy your political agenda? How long are you willing to deny equal justice under the law?”


WASHINGTON, DC – U.S. Senator Bob Menendez delivered the following remarks today regarding the obligation of the Senate to fully consider a nominee to the Supreme Court put forth by President Obama:

His remarks as prepared for delivery:

“I rise to support this President’s obligation -- any President’s obligation -- to name a Supreme Court nominee to fill a vacancy, no matter when that vacancy occurs, election year or not.  We should rightfully expect any President to fulfill his or her Constitutional duty and send an eminently qualified nominee to the Senate…

“All logic, all reason -- and the Constitution itself -- dictate that every President has the duty to do so under any interpretation of Constitutional law.  And, likewise, we should rightfully expect the Senate to do its job and send that name to the Judiciary Committee, hold a hearing, debate the nomination on the floor and take a vote.

“We are not talking about a vague clause that invites interpretation; we’re talking about a very clear and concise clause: Article 2, Section 2, Clause 2 that states:  ‘The President...shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court...’

“It does not say, ‘except in an election year.’  It does not say, ‘except when it does not suit the political agenda of the majority Party in the Senate.’  It does not say, ‘no appointments can be made in the final year of a President’s term.’  And it does not say, ‘The Senate can arbitrarily and preemptively choose to obstruct the President’s responsibility to make appointments.’

“The point is, the Constitution is clear.  In fact, in the last 100 years, the Senate has taken action on every Supreme Court nominee, regardless of whether the nomination was made in a presidential election year. 

“But, this goes far beyond the filling of a Supreme Court vacancy.  This goes to the very heart of the constant and continuous attacks this President has had to endure.  For more than seven years, some Republicans have – time and again -- questioned the legitimacy of this President.

“From his election, beginning with the legitimacy of his birth certificate, to accusing the President of ‘lawlessness,’ having a Republican member of Congress shout ‘liar’ during the State of the Union, and to questioning his legitimate authority – in his final year in office – to fill the vacancy left by the death of Justice Scalia. 

“It begs the question of why this President is being denied his Constitutional obligation.  Why are Constitutional standards, backed by history and precedent, being questioned for this President’s Supreme Court nominee?  If we were to rely on pure logic and simple consistency, the question to ask is: Would our friends on the other side deny a President of their own Party the right to make that appointment?  I think not.

“The only conclusion we can draw is that this is yet another validation of their strategic decision – seven years ago at a Republican retreat – to make Barack Obama a one-term President, obstruct this President at every turn, and then claim political victory for their own misguided inaction and refusal to govern.

“What is most astonishing, M. President, is that they claim – like Justice Scalia – that the Constitution is carved in stone, that it’s undeniable and impervious to interpretation, and yet – somehow -- they then completely ignore what it clearly states in yet another effort to obstruct this President’s ability to govern.

“I say to my friends on the other side: This President was elected twice to serve two full terms.  It has only been seven years. It is time to accept it and move away from obstructionism and onto governing.

“The President and I may have our differences on certain policies, but we are in complete agreement that he should not be denied the ability to fill this vacancy on the Court.

“Democrats did not deny President Reagan the ability to confirm Justice Kennedy in an election year and the Republicans should not deny this President the same ability under the same circumstances. We should have the decency and respect for the Constitution to let the unambiguous wisdom of Article 2, Section 2, Clause 2 determine our actions today as we did then.

“Let’s stop the political posturing.  Let the President fulfill his Constitutional responsibility, and the Senate fulfill its advice and consent role. Let us fulfill one of the most basic and solemn duties we have.  Let’s have a hearing and take a vote.

“The American people deserve a fully functioning Supreme Court. There is a bipartisan tradition of giving full and fair consideration to Supreme Court nominees.  Even when a majority of the Senate Judiciary Committee has not supported the nominee, the Committee has still sent the nominee to the full Senate for a floor vote.

“It should be noted, M. President, that at no time since World War II has the Court operated with fewer than 9 Justices because the Senate simply refused to consider a nominee.

“The words over the portal of the Supreme Court – ‘Equal Justice Under Law’ – demand that the Judicial Branch be fully functional.  When we have a Supreme Court deadlocked on a decision, the decision in the lower court stands and the highest court in the land has no precedential value.

“Let’s be clear, when there is a difference between different federal courts in different jurisdictions, it is the Supreme Court that determines what is the law of the land so that federal law is not different in New Jersey than it is in Texas. But, if the Court is deadlocked in two similar cases, and the decision reverts to the finding of the lower court, there could be differences in how a person in New Jersey is treated than a person in Texas under the same federal statute.  That is not equal justice under the law.  To have ‘Equal Justice Under Law,’ the nation needs the Supreme Court to be fully functional.

“Justice Scalia himself spoke of the problems with an eight-Justice Court.  In 2004 – in explaining why he would not recuse himself in a case involving Vice President Dick Cheney – he said: ‘With eight Justices raises the possibility that, by reason of a tie vote, the Court will find itself unable to resolve the significant legal issue presented by the case. Even one unnecessary recusal impairs the functioning of the Court.’

“I believe that, in life, Justice Scalia, as a textualist, would say the President has an obligation to nominate a Supreme Court Justice.  And, in 1987, before the Democratic Senate confirmed Justice Kennedy – it was President Reagan who said: ‘Every day that passes with a Supreme Court below full strength impairs the people’s business in that crucially important body.’

“I ask my Republican colleagues: How long are you willing to impair the people’s business? How long are you willing to stick to a strategy of obstructionism over good governance? How long are you willing to deny this President his Constitutional authority to appoint a nominee to satisfy your political agenda? How long are you willing to deny equal justice under the law?

“It was John Adams who reminded us that this is ‘a government of laws, not of men.’ And it was Justice Felix Frankfurter who said: ‘If one man can be allowed to determine for himself what is law, every man can. That means first chaos then tyranny. Legal process is the essential part of the democratic process.’

“M. President, let us not – in this Chamber – be the ‘one man.’ Let us respect the Constitution and do our jobs.

“In this case, the Constitution is settled law. Let’s not unsettle it through a misguided determination to score political points to undermine the legitimacy of this President. The American people understand that our obligation in this process is to advise and consent, not neglect and obstruct. 

“The American people will see the harm to our country and our courts if the Majority continues these political tactics.  Let’s do the right thing; let’s do our jobs and respect this institution by holding hearings and voting on a Supreme Court nominee.  Let’s provide for “Equal Justice Under Law.”

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