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tv   Senate Democratic Steering Committee Forum on Supreme Court Nomination...  CSPAN  February 25, 2016 1:37am-2:53am EST

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responsibility of citizens and the next president of the united states. this president has every constitutional right and obligation to nominate someone to a vacancy on the supreme court and there is a second obligation of the senate to confirm that nomination and the senate has a view that the noter to the question is right now because we are too close to a big decision on the future of the country to not that andhis process in i wish the process of democracy well and the american people well, as we
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>> thank you for being with us. we heard from senate republican leaders and this will likely come up in tomorrow night's debate in houston among the republican candidates. what can we expect? where iis a rare issue don't think you will see much division at all among the top three. after antonin scalia's debt they were taking the same position that most republicans were taking, which is that the next president should choose his nominee. ted cruz has been talking about how he would put up a constitutional conservative and how he wants to change the balance of the court back to where he thinks it should be. i would say i have not heard a
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time from john kasich on this and he's obviously a long shot for the nomination, but he's someone who might take a little bit less of a hard line on this. this is something that unites .he republican party so, i do not expect this to be an issue of division and you never know, at this point in the campaign. >> we have heard from the president. what are you hearing from congressional democrats? >> they are trying to plot out how they will handle this. they are being complicit and forwarded the name of brian sandoval, a moderate republican. the idea is to make the republicans look unreasonable by rejecting their own. . president obama called my and other members of the judiciary you heard republican senators
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say that it does not matter and they took the hard line before the nomination and will stick with it. democrats are figuring out how to make this painful and trying to make the republicans change their mind, which i do not think will happen. they do not want to overreach. they think the republicans want them to muddy this and democrats are trying to feel out the best way forward on this and think the idea is to keep the attention on the republicans to make them seem unreasonable, in the hopes they will back down. >> there are purple states and some are in tough reelection battles. >> they say they will not vote for a nominee and this is becoming popular. you do not crack the door open
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at all. roy blunt said that the nominee could do better things to do with their time. generally, it seems like the vulnerable incumbents are getting entrenched. no votes or hearings. they just want to take the oxygen out of this subject. >> where does this put the president and sanders and clinton with the nomination. >> the interesting thing with this is that it cuts down on narrative and there was an idea that some senators had supported obama and seemed poised to
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support clinton or sanders, if he is the nominee. the idea that you would vote democratic for a presidential candidate and vote republican for a senate candidate. -- for a senate candidate is unlikely. if you want a supreme court justice and you are voting for a democratic candidate, it seems like you would also vote for a democratic senate candidate. it is interesting how tightly linked the races are and they are basically two cogs. >> we are joined from capitol hill. thank you for your time. >> democrats held a forum on the republican refusal to hear a supreme court nominee.
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they heard from legal scholars. this is just over an hour. >> welcome. we'll have a number of senators and we want to hear from all of you. thank you for being here. thank you so much. we are joined by the impressive group of legal scholars to talk about one of the most consequential duties to advise and consent appointment to the supreme court. consequential duties to advise and consent appointment to the supreme court. as a pillar of the government, we value the distinctive insulation from public opinion
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conductinges themselves with the law and constitution and we are here to talk about what the constitution says and it is pretty plain language and what history has vacanciesith these and how they have been handled in the past. have family and friends and colleagues of justice scalia. one of them is a former professor and i get to ask him questions, which i like. also, fellow faculty members. we havend thing is that a vacancy and the constitution is very clear and says that the president shall nominate and that the senate is to advise and consent.
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you look throughout history and have to go back to the civil war time for when the position was left open for over a year and back to a time before we had cars and airplanes and washing machines. we also have current justices on since 1975, the average time from the time the person has been nominated, we have been joined by a law professor. , we will not call her professor war and today. i like to say that it took just two months to take this done. some of our colleagues want to hold this over to terms of a court and we believe this is unprecedented and against the constitution. i will be joined by
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some colleagues. here, if you want to say a few words. .> it is unusual to have this what is happening here is disturbing and unusual and i look forward to the observations of our panel and i regret that i cannot stay for the entire presentation, because i have some conflicts this afternoon. i assure you we will follow the testimony and i tell you this because the system of government depends upon three branches of government and respect for each branch of government to carry out governmental responsibilities to allow the system to work and the president makes appointments to the court and the congress confirms or rejects those.
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this is the framework of the it seemsion and incredible that we would think it was ok to say we will not nominee and i'm interested to hear from the panel. am i overreacting or is this fundamental and it attacks the structure of the government and the branches? >> thank you. senator warrenom and some of our witnesses. is on the blumenthal republican side. i hope it will wear off.
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>> on them. should not be a republican and democratic side on this. thank you for pulling this together. it is unusual for us to do something like this and it is important and we have other hearings this afternoon that were previously scheduled. it is important and mcconnell was right to say the american people should have a voice in this selection and, in fact, they did, obama won the election in 2012 by 5 million votes. the president of the united states dominates justices to the supreme court with the advice and consent of the senate and i clause that says, except when there is one year
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left in the term of a democratic president. the republican approach to this is unprecedented in the senate has been hearing -- holding hearings since the 1960's with supreme court justices and nine justices were confirmed with no hearings at all. one justice withdrew before a hearing and all of the other supreme court nominees that were sent up by the president, every single one received a hearing in the united states senate. over the past 100 years, every single pending nominee to a vacant seat on the supreme court, every single one, they have received a vote on the floor of the senate. for the rest of this year, obama is still the president of the
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united states of america. it is -- if some senators do not like who obama nominates, they can make a case to the american people and vote. it would be irresponsible for senate republicans to preemptively paralyze a nomination process that is laid out in the constitution with senate republicans taking of its aths the democrats did. prove that all the theblican talk of loving constitution is just talk and nothing more. the president is currently decision and making a on who to nominate. he is doing his job and, when he nominates someone, the senate
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should do the same job it has been doing for over a century because that is what the american people sent us here to do. >> thank you. we will hear from professor stone, who i took for classes --m dutch to i took classes professor stone, who i took classes from. and, we plan to hear from schumer and durbin. we will start out here with stone. >> thank you for inviting me. in a recent piece, it was proclaimed that the only rule that governs the confirmation process is the law of the jungle and there are no rules. this is misleading and dangerous.
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if taken seriously, this undermines years of tradition create damaging effects to the rule of law and the supreme court. when we examine the performance of the senate, it is clear that .he supreme court will defer this has been an outcome with nominations and, as far as i can sit -- as i can see, in history. aen when it is controlled by minority party or it will have an impact on the balance of the court and in the final year of a term. nominees who are qualified and moderate are confirmed. what are the rules and conditions that govern the
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process? it is worth noting that the senate has confirmed nominees 79% they have confirmed considered. despite handwringing over the process, there has been a consideration over time. why do some senators sometimes vote against? partisanship.s is important to note that members of the senate have voted , even when the opposing party considers the senate and the nomination. they also take qualifications into account and nominees were
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considered to be highly qualified and received 97% of the votes. the less qualified nominees received 61% of the vote. take judicial philosophy into account. moderate views, like sandra day o'connor, receive 96% of the votes. views, likeogical marshall and rehnquist, 77% of the votes. what this tells us is, first and foremost, 19 of the most moderate nominees have been confirmed, including soda meyer justicea soda meyer -- sotomayer.
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all of the nominee is perceived to be qualified and moderate were easily confirmed, including would occur, stewart, harry blackmun, john paul stevens, and david souter. wasyone of these justices nominated by a republican president. the simple fact is that the senate always differs to the president, as long as the president puts forward nominees who are qualified and reasonably moderate. and this reduces the risk of politicizing the judiciary and averages out over time. and has servedic the nation well.
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the desire to obstruct is understandable and the obstruction would set a disastrous precedent for the future. senate republicans should do their job and confirm the nominee. thought,a closing republicans announced they will not consider a nominee put forward by a duly elected president, no matter how qualified and moderate. this is unconscionable. if they carry on with this, it be -- mpatible and would if senate republicans follow courth, the supreme process will be lawless and the law of the jungle. it is a legacy they will surely
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come to regret. forhank you very much joining us. >> thank you for the opportunity to be here. it is a privilege to be able to talk to you about the constitution and it is a special honor to be here with a teacher and mentor. statement andtten i will limit myself to three observations to begin with. it is not hard to figure out the allocation of power with constitutional appointments. the president nominates and the senate gives advice and consent. the constitution and the duties
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remain fully in effect and there are no exceptions and it does not provide for suspension on timing of the nomination. the president and senate maintain appointments at all times, regardless of what happens in the country, civil economy,pressed presidential elections, or other circumstances. we have heard much about historical practices that are of limited relevance and there is no tradition or precedent for the senate to declare that it will not entertain or consider the nomination for the supreme court. the rule is not a rule and reflects how a senator felt at different times in his career
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about how he thought the senate andld do with the vacancies it is not a constitutional rule that has ever been followed with respect to elections and i can think of 13 confirmations involving the supreme court and i would point out that today is the anniversary of marbury johns madison, written by marshall, appointed by a lame-duck president. the most important part to remember is that they do not ofd this institution and rob authority and they are not under your oath. they are suggestions of how to use power. they do not say how you should use your power. what should guide you and your colleagues, my own belief is
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that you should consider the precedent you are establishing and a choice to shut down the nomination process for nearly a year. it is not grounded in a grand principle and we know what guides this. and we aresanship told the senate will leave this issue to the next election. what about the past several elections? do they not have this effect? void?ey know and and void? -- we dor is simple not believe the leader should stop governing in an election year.
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helpingad the honor of with the legislative history casebook. what is the lesson of not governing? what should be taken away? there is no grand or noble principle at work. there is none. the constitution does not cease during wars and was not suspended during the great depression. supreme court appointments have been made, in spite of how turbulent it has been and there is no timeout or suspension for any reason. dideaders could lead, they and can rise to the occasion. govern.te job is to >> thank you. we have been joined by the thetor from new jersey and
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senators from hawaii. schumer was going to say a few words. ok. you are from new york and he is deferring to you. you.lcome ofis the vice-dean intellectual -- at columbia law school. i think we need a vice dean around here. >> let me know if you want me to step in. i want to make points about a lack of historical precedent with the supreme court vacancy and the consequences of inaction 's responsibility
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to fill the vacancy. unprecedented in the modern history and threatens to create uncertainty in the and there are no presidents who have refused to build a nominated. one was nominated and confirmed of the have heard there wasjustice and no vacancy on the court at the time. the resignation was not effective until this qualified
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and the senate held hearings on the nomination and it was this wasn merits and not a precedent to hear a seating. we see the additional pattern and, in cases involving vacancy, the senate never refused to act on the nominee. john quincy adams, tyler, johnson, and rutherford b. them weree of elected. the people have spoken and the about thent is consequences of inaction and
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bringing uniformity to federal the eight person court to undermine that function. and there is an eight member court. set a precedent for the rest of the country. anday affect the decision leave conflicts in the lower court that are unresolved. length ofsed on the recent confirmation hearings. hear the would not first cases until 2017 after scalia's death.
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the final point is that the senate has a constitutional duty and the duty is to exercise power. the preamble tells us that a purpose is to establish justice and vacancy undermines that. plan -- itution one thinks of leaving executive appointments vacant, this is treated differently and, we established conventions. it has beenthat unchallenged since the days of the republic and it should guide the way. in light of the decision to give
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consideration to fill the vacancy, the responsibility here is clear. thank you. >> thank you very much. by the been joined senator. >> i am glad to be here. >> you are a distinguished professor would georgetown and had the least amount of distance. >> i traveled the furthest. >> we see the senate and you are doing this this afternoon. i want to talk about the inrecedented developments framework.ral partyvent, basically, the
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is undermining the structure of the democracy and the proper is damaged of power in a two-dimensional way and it is caused by disrespect for democracy and a negativity towards legislation. this has been going on since obama's inauguration and it has contributed to public discussed over the functioning of the government. we have a breakdown in the separations of power and it is a structural and constitutional problem, in a structural sense. this is one of the most important responsibilities the branches had in the structure and for a major party to thumb
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this is to strike a blow at the heart of checks and balances that are a sick to the constitutional framework. refused ae state education orpublic a police department, it is fundamental to the democracy and it is probably not what the supreme court would take on. we would view this as the affirmative duty in the constitutional framework and the affirmative obligation is explicit with the is spot -- the responsibility to advise and .onsent in the constitution there are no exceptions for election years. theat that is a subject is
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core of the constitutional ofmework and it is the peak the importance to the functioning of the democracy with a basic duty carried out without any question and there have been 24 instances in which a president has nominated a justice in the last year of the term and it has been an understanding of both parties throughout our history that the republican party is on a path to welate the agreement and seriousn watching a undermining of democratic institutions and it is on the way to happening again with a
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violation of separations of powers, if they continue to refuse to take a tiny step towards carrying out constitutionally required responsibilities with advise and consent. this is a constructive event for the nation and a debate about the role and the direction of the role of the court and the meaning of the constitution that should be undertaken in a manner with they and respect reaction of the republican party up to now taking us in the opposite direction. thank you. >> thank you very much. >> i would like to ask a few questions. >> thank you very much for your testimony.
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you are all scholars who have studied the court. a timeu ever come across in the national history as damaging to the future of the of power,the balance as it relates to the supreme court? >> i would say not. there were serious issues and i think that this is more defiant of the constitution. >> anyone else? >> we have had some unfortunate moments in our history and it is hard to say. >> this tells you something about the territory we are in and we are looking at low occurred inat previous history and i think that the deliberate choice to not do something is
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remarkableed and is and, when things have gotten bad, there have been no other times when people voluntarily abandoned being represented in congress. that was the civil war and this is not the civil war. then, the constitution remained in effect. >> the only thing i would add is that a thing that is worrisome about this is a precedent that is set and this is crossing a line that will be hard to walk back in the future. plays a rolelitics with any nomination to the court and people say things that they may not have said and this is really something that is hard to say onek on and, if you
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year is not enough time, why not just say you do not agree with the responsibility and this crosses a line. >> i imagine it would go down to a circuit court easily. >> i would add that there is a different context with everything said, the context of the behavior of the republicans and this is hitting a new low. ask you a question right now with the republicans. if they get their way, which i don't think will happen because there will be enough pressure. the average americans do not like this and they want them to
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eruditeob, not being as as your statements, but right to the point. they will have to back off, as they have with other issues, where the hard right controls them. tell us a little bit about the gridlock that could result with the supreme court and the lower courts and how that affects all the issues the supreme court's my last that is question. job think green did a good talking about that and i do not want to preempt him. i certainly think it produces circumstances in which the court becomes paralyzed and incapable of providing the leadership.
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>> go ahead. casesthis term, there are involving religious freedom, free speech, voting rights, executive power, abortion-rights, labor rights, and cases that do not get media attention with the court having with a and cases division of authority in the lower courts and the uncertainty means a lot a difference. unlike the lower courts, the rely onction is to those divisions. courts hanging over the means they cannot do their job.
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not having a single judge in a lower court would be different. >> would this have an effect on jobs and growth with companies that holeic interests up and do not do the kinds of things to move forward, and terms of moving forward to create jobs with lots of issues that various companies and groups are interested in that we have not even heard about. -- heard about? make as hard to speculation on how to move the business. >> it is possible this could hurt with job creation? >> certainly. >> we have been joined by murphy from connecticut and the senator from michigan. i would like to ask questions
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here and move on to senator franken and stay in order. shall. a question about says theitution i president shall nominate and the senate shall appoint. when you see the word in other parts of the constitution, it is pretty clear and the 20th amendment says that the term day end at noon on the 20th of january. these are just examples. about whetherent or not you think the language is clear? this is a softball question. clear.it seems you guys are the experts. yes, thatg to that,
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is my answer. that youo on to say have to -- as an underlining, as an exclamation point, this is the mostdvising isamount, the absolute zen of the application and it is not only a duty. to then relation fundamental structure you heard and we all know about the implications of the states and andprecedent for the future the emphatic yes to your question is that the duty could
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in thisore important instance. >> i have no doubt that scalia, a textual list, if he was asked a question and it was behind a certain that100% he would say that shall means shall and would be right. on greaterit takes importance over time and the country has increasing importance and they want the fully functional supreme court. ofthis question on the issue death penalty cases that come before the court. what will happen to those? happens is a thing that
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and, as was said here, it turns out that, whatever way it ends up, either the court can come to divided orn and be it will be leading the country, if you have different decisions and you have different laws in different parts of the country. >> that is some of the appeal. >> yes. whatever the decision is on the differences of opinions, it leaves a conflict in place and does not resolve it and that is certainly one of the results of it. there is a result if the court is deadlocked. the lower court stays the law.
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in terms of the question the senator asked, there will be a lot of times when people who are major stakeholders in the sector and in the public final decision. >> senator franken. al franken: i agree with the professor and others who are saying this. it presents a dangerous precedent and what happens next time? is it 11 months? 12 months? 13 months? it, obviously, there is nothing in the constitution that says anything other than it is the president's job and our job is
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to advise and consent. and the clear-cut president for be almost 11 more months and it anythingitrary, almost does, other than what is in the constitution. obviously.c, our hearts go out to scalia's family and i may not have agreed a lot of stuff. i thought he was very funny, i don't know if that means anything. and he was devoted to the constitution. devoted to the actual text and it seems clear
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here. if a majority leader wants to change the constitution to say nominate ant cannot supreme court justice in 11 year or 11 months. housesd have to get both and 3/5 of the states. could he do that now? try.uld would that be constitutional? that would be constitutional. >> he has that. >> i want everyone to understand that he has a constitutional way to approach this and i would
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suggest that he try it. >> that would be a way to do it. the fact is that the constitution does not give the senate the opportunity to not govern. which is to say, "we are not doing our job." i'm not saying that. >> if it got amended that way, we would follow that. >> senators, in the sixth year of their terms should probably not be chairman of committees and allowed to vote on supreme court nominations. that seems more consistent with what the majority leader is saying, rather than a lot of what he is saying. >> i would say that that would thatlevel of minutia constitutional amendments do not typically address. if properly done, that would be
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constitutional law. >> thank you. >> thank you very much senator franken. >> senator blumenthal is a former attorney general. >> thank you. thank you to the senator for convening this gathering and to each of you for being here. that we areppy asking the questions and we are not subject to a socratic method and i i want to thank each of you for public service in various capacities and i ask a reflectsthat i think the work of the courts that is often unappreciated because the court, and almost all cases, is making decisions about what
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cases to take and not just how it decides. the cases they take, if laws of the same, it requires for votes. the eight member court also can the agenda of the court by refusing to take cases where there are conflicts in the circuit, let alone putting aside decisions that may be gridlocked and the very agenda and the docket of the court would be changed with one or more of you may be speaking to the issue. ,> as it stands with the court nothave those who want to hear a case and that is not
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enough because of the rule of four. age, fiveourt of ofrtrs -- with a quart o eight, five members would block. you have some of not being taken at all it it doubles down on the legal uncertainty with this refusal. isthe other important task providing certainty and going to thes schumer
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point of lack of certainty in -- certainty impedeing. and that is why i think the and irs created a court think that we are seeing the kinds of threats that gridlock in the court that people find d.c.rent in washington, these days and what is being done you can do my's is the part of sin morass that people have come to the test and drag the court into which and damage the court. at the end of the day, as we all know, the court has no army or
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police force and it depends on credibility. some say it is a mystique. the people of the united states see the court as a bunch of politicians and it will diminish and ultimately be damaged. so, thank you. >> the senator on the judiciary years,ee for a number of now on the intelligence committee. we hope she comes back. >> thank you for all of you being here and you made it clear that shall means shall, in terms of responsibilities of the senate and i was trying to think analogy.rageous state senate told the
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that they could not fill the vacancy for over a year, that would raise a huge outcry in that state and others. republicans are violating the constitution. if they do not change their minds, if they stick with their positions, are they violating the constitution? i think they have a fundamental responsibility based on the text and on our years of tradition, to honestly consider and debate and judge whether the president's nominee is a person qualified to be on the supreme court. >> so do you agree that if the republicans do not change the position, they would be violating the constitution? >> i do, senator.
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that was essentially the argument of my earlier remarks. >> so what is the remedy, when a body violates the constitution? >> guantanamo. [laughter] >> no, really. this is a serious question. >> i know. >> what can we do? can a whole body be impeached? and the leader of the body be impeached? what is the remedy? >> i think our amity in the united states, in that particular situation, is you face your voters. let me just add -- >> that is a strange remedy for a violation of the constitution. context, there are things, we think violate the constitution that you cannot take to court. a former edelman: colleague wrote a terrific book about the second bill of rights, based on president roosevelt's
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last inaugural address in 1944. the whole book is about things of constitutional stature, if you will, that are not enforceable in any way. so sometimes, now, there are ways in which, as you know what the body has the power to do to eject a member. and there has been litigation filed against mccormick on that. but that is a different kind of violation. is, and i think it is the point of our conversation here today, which is to say to the american people that what's going on here, the lack of historical precedent, all the rest of it -- but on top of that, it's a question for the public to understand. they have a constitutional duty which they are violating. >> yes. so, do you all agree that there
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is no constitutional remedy? >> there is a judicial remedy. >> there is no judicial remedy. thet is important to say, fact that some but he has the raw political power to do something does not mean it is consistent with their duty. if you draw an analogy let's say the house where to be working on an appropriations bill and the senate were to say, no matter the content of the bill, we will not consider the bill whatsoever. doesn't matter what it says. we would not say, they have made a decision to appropriate zero. we would say, they are not doing their job, not fulfilling their constitutional responsibility. that is the analogy i would draw. >> or we can think of a different analogy, since that is our job. of ninecreate a court seats, and there is a vacancy and the president chooses not to make a nomination. what is the remedy, then?
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would you say, your job is to enforce the law, to administer the law among many other things. you need to make a nomination. and he would say, i prefer to have a court of eight justices. i think that would be problematic, and i can imagine a senate, even a house saying, you just violated your oath because you are supposed to be enforcing the entire constitution, which means following the law and nominating somebody. >> that is the difference between the legislative and the president. it gets into a long conversation about what constitutes high crimes and misdemeanors. but at least there is a remedy, which is you could impeach, try to impeach. by the way,eene: there is a law that says there should be nine members of the supreme court. that is a federal law being potentially violated right now. >> thank you. >> thank you.
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merkel. senator merkel: i appreciate you all sharing your expertise. it was in youre, written testimony that the supreme court is a major innovation of our constitution, as compared to what went before it. washat regard, it specifically established so it would be independent of congress. itthat context, then, certainly was not anticipated that congress would be able to use advice and consent power to put this up in court out of action. i have gone -- the supreme court out of action. i have gone back and read the federalist paper on this topic. is there any sense at all that anyone envisioned that congress would, that the senate would use
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its advice and consent power to, if you will, undermine the ability of the court to function? >> the short answer to that question is probably no. but let me underscore the fact that what we are looking at here is unprecedented. even in the worst of times, the senate when it has been oppositional, gives people a hearing. actually, tries to consider the nomination. but this is the refusal to consider anything. the very extremity of this refusal distinguishes it. senator merkley: at the time the constitution was drafted, it was not exactly clear what advise and consent meant. we have over time developed a very clear and unanimously apply understanding -- applied understanding of what that means. every single nominee who is understood to be qualified and is perceived as being relatively moderate has been confirmed, period. no exceptions.
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what the senate has basically done is saying, if you nominate someone unqualified, or off the charts ideologically, we might not confirm them. but if you nominate somebody who is reasonably moderate and qualified, we will, period, confirm them. that has become the meaning. and it is a good meaning. professor greene: hamilton referred to the standard -- senator merkley: hamilton referred to the standard of unfit character. investing power in the executive or the assembly, as it was referred to. the conversation was, it made a lot more sense to give it to a single person, because you have more accountability, more judgment. however, should that individual go off track and start appointing people who were friends and families and favored individuals who were inappropriate because they did not have the experience, than the senate serves as a check on that. that is the standard that was
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discussed of an unfit character. and i don't see any kind of foundation, if you will, for us to exercise advice and consent other than in that context of an egregious nomination where an individual is either unfit by experience or by character. is there any other standard by which the senate could reasonably say it is exercising its responsibilities? professor gerhardt: i think that captures a quite well. though people who are extreme ideologically, in some technical sense, also fit within that description. that is exactly what the united states and has done for 225 years. that is the best approach to working out the balance between the president and the senate, which is there to serve as a check for irresponsible nominations. thatssor edelman:
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does not include refusing to even consider the nomination. the keyword you used here is "individual." the role of the senate is to evaluate particular nominees, not to prevent the process from happening at all. you want see anything in the framers suggesting the senate can keep the progress -- process from happening. senator merkley: i see i am over my time here. [laughter] >> if you want to ask one more question, then we will go to senator casey? senator merkley: thank you for that courtesy, madam chair. specifically, we have a constitution crafted with this balance of powers between three branches. but if the senate uses its advice and consent responsibility to either undermine the executive by refusing to fill key positions or undermine the courts by refusing to hold a conversation and vote on court nominees, is and the senate deeply -- isn't
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the senate deeply abusing its advice and consent power, which was never designed to create an imbalance of powers in which the congressional branch has the ability to systematically undermine the other two? >> i said in my statement, senator, that we have had eight years of two-way failure of separation of powers. and this is the first time in history, as well as the first time by this group of people, to have a three-way destruction of separation of powers. i might addeene: one additional point. it is probably not that hard to imagine moments in the past when senate -- the senate has perhaps abused its power. but the critical reason is, if that actually did happen, if there were those abuses in the past, that would make the weakest possible president ever to follow. the point is, here the tradition is to give a hearing, not to
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simply decide you are going to take a holiday and not do anything. senator merkley: thank you. >> senator casey, last but not least. senator casey: thank you. i appreciate you calling this hearing. this is a distant wished panel. -- distinguished panel. might elicit a response that is already in your testimony, so if you are responding by way of reiteration , i apologize for that. but around here, it does help to repeat ourselves, you can help us do that. i am particularly stunned by this position republican senators have taken. this is my 10th year in the senate. i thought i had seen it all, until this. it is a stunning dereliction of duty. i don't know how else to say it. to tear not, you know,
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any of ideology, it is the tyranny of raw politics. depending on what day it is, i am not sure if they are doing it purely for ideological reasons or purely for political reasons, for both. but it is too radical, and it is -- tyrannical, it is misguided, and it is bad for the country. it seems like the same thinking that resulted in a government shutdown in 2013. when most people thought we had come to the precipice and would not fall into the abyss -- and we did, because you had one party in the grip of an extreme group who said, let's shut the government down. that's what happened. this may not be a shutdown of the spring court, but it is certainly -- supreme court, but it is certainly a partial shutdown, or at least something that inhibits the court from doing what must. i guess one thing i am hung up on is, and you may have already addressed this both in questions
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and in testimony, the impact of and what effect that has on jurisprudence, setting aside the obvious effect it has on confidence, measurements like that, assessments. just on jurisprudence, for functioning of the court, how do you address that? we the panel, maybe peter, can start with you? >> senator, we did talk about that some. although there are periods of time when there is a vacancy and the court functions 4-4, or somebody decides not to participate in the decision process -- but especially for the amount of time, it warps the process.
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it leaves us, if you are looking at it from a liberal and conservative scorecard, it depends what the lower court did, so we could name some that are on the docket right now where from a liberal point of view it's going to leave in place a lower court thing, and we say, we might have lost that. that's not a good way to do business, but that's what it is. professor greene made it clear, what we know as lawyers, which is that sometimes -- because this is sometimes the business of the court, to resolve differences between circuits -- well, those are left in place, and you have different laws in different parts of the country. it is a very big point. >> we are potentially talking full terms of the court in which it is unable to decide closely contested, what would have been 5-4 decisions that become 4-4 decisions.
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that leaves in place divisions of authority within the lower courts, which it is the job of the supreme court to resolve. the supreme court has multiple responsibilities. one of the main functions involves disagreements. it leaves the law in a state of uncertainty. senator casey: so the choice is -- it is notlaw the same calculation. there is a deliberate choice to leave the court understaffed in the circumstances. there is a cost to certainty. there is a cost to the court. the question becomes, what is the benefit? there is no grand principle at stake here, no benefit other partisan. senator casey: i think the dysfunction that would be created -- >> i think the dysfunction that would be created in the next years in the courts needs to be considered, but the stakes are much higher
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than that. a tradition and process about supreme court nominees that has been quite consistent and has worked quite well. this throws that into chaos. the long-term and locations of this, i think -- implications of this, i think, are severe. frankly, members of the senate should think about this in those terms. wendy south seceded, lincoln did not say, let them go. i think this is like that. i think this is a moment when it is important to stand up and say, these stakes are extremely high. they go to the rule of law of our constitution and our government. >> i guess there is a part of us that believes, even when the legislative branch goes in the direction a lot of people don't want it to, that somehow this branch of government would be walled off, or immune from that. -- it is the branch the legislative branch that is
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not doing its job. the other question i had, on kind of the deadlock question, is emergency matters that come before the court. i don't know if you have already spoken on that. if anyone can assess that? >> that is the same point. and itneed five votes, is 4-4, then there is something that really needs to be done right then and decided, you can't. so yes, that is a key point. it may be worth reiterating, there is no exception to the senate's duty here. there is no opportunity for them to take time off. if, god for bid there were a war or something like that, we would expect our leaders to be on call. that is not a time to say, we are going to choose not to defend this country. that is not a choice. that is the duty. the same thing happens here, i think. there is not a choice to abandon your job.
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or if you make that choice to abandon your job, some bl should fill your slot -- somebody else should fill your slot. >> well said. >> i neglected to go through all your credentials. we still have a lot of reporters here, and people who are watching on live stream and on c-span. i did not do it at the beginning, because we had so many senators here. to be fair to all of you, our listeners, people that are here watching, so they understand these are some experts on the court like no other. we have professor stone, who is dean of the chicago law school, clerkedclerks with -- with supreme court justice william brennan, and served as chairman of the board of the american constitution society. whor aleman, -- edelman, was law clerk to supreme court justice goldberg and was on the faculty at georgetown.
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assistant toative senator robert f kennedy. can't get better than that. michael gerhardt, who is with us from north carolina. a distinguished professor of constitutional law, who served counsel assisting the white house on justice stephen breyer's confirmation hearing in 2005. he advised several senators on the nomination of john roberts as chief justice, then testified in confirmation hearings for justice samuel alito. he served as special counsel to hey, and patrick la on the nominations for sonia sotomayor and elena kagan to finally, jamaal greene, in addition to being the vice dean at columbia, he teaches and writes on u.s. constitutional law and theory and the federal
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courts. he was theo 2008, alexander fellow at the new york university of law and was law clerk to justice paul stevens on the supreme court. from yale lawjd school in 2005, where he served as the "article" editor. these are some pretty heavy-duty professors. i have also heard from some more conservative leaning professors who believe the same thing, that the constitution is the constitution, that shall means it shall, that people have a duty to do their job. i am sure all of our colleagues were shocked when justice scalia died. that happened. but when things happen, you have your jobs to do. you have your jobs to do. that is really what this is about today, about a constitutional duty, a solemn oath that people take to do their jobs, respecting not only
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the history of this country, but really the basic constitution unless our country is based and our government is based. i want to thank you for taking the time to join us. there were several comments made about the need to continue standing up. you have seen the democrats in the senate be very clear from our most liberal senator to our most conservative democrat, you believe that the constitution is clear and there is a duty here. on the republican side, you have heard a few senators say they think we should have hearings, that that is part of our duty for advice and consent. still that, the senate advise and consent in its own way. but nobody refused to meet with nominees or said they would not move forward with the process. so i want to thank you so much. we don't think this is going to end. we are going to continue

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