Senator Lankford: American People Should Decide Future of Supreme Court

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WASHINGTON, DC – Senator James Lankford (R-OK) today delivered a speech on the Senate floor about Justice Antonin Scalia’s death and the current Supreme Court vacancy. He made the case that the American people should have a say in the process of replacing Justice Scalia, and that it is completely appropriate for the Senate to wait on the confirmation process until after the presidential election. In addition to sharing historical precedence, Lankford read the contradicting past statements regarding justice confirmations during presidential election years from then-Senator Joe Biden, and Senators Harry Reid and Chuck Schumer from 1992, 2005 and 2007.


On America electing a Republican Senate to be a check against President Obama:

With Justice Scalia’s passing, we have a vacancy on the Court to fill. The question is, when? I would submit, with only months left until the presidential election, we should let the people decide. I’ve heard over and over again for the past seven years that elections have consequences. But apparently some people seem to only think elections have consequences on presidential elections. The American people elected a brand-new Senate in 2014 because of their incredible frustration with the operation of the previous Senate and because of the direction that we’re now heading under this President. I’ve heard this argument for years. The President should be able to do whatever he wants. He is the President. But may I remind everyone of a document in our National Archives called the United States Constitution that gives divided power to our nation. The President is not over the Senate, not over the House and is not over the Supreme Court. 

On the President and Senate having equal responsibility to replace a justice:

The hyperbole of this has been overwhelming to me in the debate of the past few weeks. I have heard that unless we replace Justice Scalia right now, we will shut down the Court. I have heard on this floor people call that if we don’t replace Justice Scalia immediately, it’s dangerous, it is unprecedented, it’s unheard of. I have heard, “do your job. A failure to do your duty.” I even heard one Senator say, the Constitution says the President shall appoint and the Constitution says the Senate shall consent. Well, let me show you article 2, section 2, of the Constitution where that comes up. It says “The president shall have power and by and with the advice and consent of The Senate to make treaties, provided two-thirds of the senators present concur and he shall nominate.” Now, the president shall nominate. That’s his Constitutional responsibility. 

Because the Constitution gives the role of selecting the Supreme Court nominee into a 50/50 responsibility between the United States Senate and the President of the United States. The President shall nominate. That is his responsibility. But that only moves forward with the advice and consent of the United States Senate. There’s no shall give consent. There’s no requirement of how it moves. In fact, Alexander Hamilton in The Federalist Papers discussing this exact issue, said the ordinary power of appointment is confided to the President and the Senate jointly. This is a 50/50 agreement. And what we’re facing right now are incredible attacks on the chairman of the Judiciary [Committee] because he dares to do what Vice President Biden, what Senator Schumer, and Senator Reid recommended years ago. 

On contradicting statements from Vice President Joe Biden:

Vice President Biden at that time said this. “It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.” Saying instead, “It would be our pragmatic conclusion that once the political season is under way and its action of the Supreme Court nomination must be put off until after the campaign season is over. That is what is fair to the nominee and central to the process.” 

On contradicting statements from Senate Majority Leader Harry Reid:

Earlier this week, Senator Reid chastised Senator Grassley saying he wants to rewrite the Constitution. In 2005, Senator Reid stood on this floor and encouraged all members to read the Constitution and that it nowhere requires that we have to take an up-or-down vote. So I don’t know which one to take on this. The current statements from Senator Reid or the previous statements from Senator Reid because they’re in direct contradistinction. 

On confirmation timing not significantly affecting this year’s Court sessions:

Since there’s no nominee right now, it would not be possible to fill the vacancy in time for that individual to hear cases in the spring session of the Supreme Court, which means any nomination selected now would only be able to serve and hear arguments in the fall, which is a much shorter session of the Supreme Court, before this President actually leaves. 

On the Constitution not defining the number of Justices on the Court:

Eight members can operate the Court. In fact, the Constitution doesn’t even give a specific number to the Justices. It’s always been a decision of the President and the Congress together about how many Justices are on the Supreme Court. 

On whether the Democrats could possibly pursue a recess appointment:

I would say what is really happening is the Democrats who implemented the nuclear option, while they were leading the Senate and packed all the lower courts, urgently want to be able to pack the Supreme Court as well. That will not happen. We will also not allow a recess appointment. That has been floated multiple times in the media – that the President will just do a recess appointment and go around us. The Senate chooses when the Senate is in recess. Not the President. So we can do this. We can remain in continuous session without recess to prevent a recess appointment by this President through the rest of this year. 

On letting the American people decide:

This is a moment when the people of the United States should speak about the direction of our nation. We are still a nation of the people, by the people, for the people. And for the next President and for the next Supreme Court nomination, we should let the people decide. With that, I yield the floor. 

CLICK HERE for full transcript of the speech.