III 114th CONGRESS 2d Session S. RES. 581 IN THE SENATE OF THE UNITED STATES September 27, 2016 Mr. Blumenthal (for himself, Mr. Leahy , Ms. Baldwin , Mr. Bennet , Mr. Booker , Mrs. Boxer , Mr. Brown , Ms. Cantwell , Mr. Cardin , Mr. Carper , Mr. Casey , Mr. Coons , Mr. Donnelly , Mr. Durbin , Mrs. Feinstein , Mr. Franken , Mrs. Gillibrand , Mr. Heinrich , Ms. Heitkamp , Ms. Hirono , Mr. Kaine , Ms. Klobuchar , Mr. Markey , Mrs. McCaskill , Mr. Menendez , Mr. Merkley , Ms. Mikulski , Mr. Murphy , Mrs. Murray , Mr. Peters , Mr. Reed , Mr. Reid , Mr. Sanders , Mr. Schatz , Mr. Schumer , Mrs. Shaheen , Ms. Stabenow , Mr. Tester , Mr. Udall , Mr. Warner , Ms. Warren , Mr. Whitehouse , and Mr. Wyden ) submitted the following resolution; which was referred to the Committee on Rules and Administration RESOLUTION Prohibiting the Senate from adjourning, recessing, or convening in a pro forma session unless the Senate has provided a hearing and a vote on the pending nomination to the position of justice of the Supreme Court of the United States.

Whereas the Constitution of the United States provides that the President shall nominate, and by and with the advice and consent of the Senate, shall appoint justices of the Supreme Court of the United States (in this preamble referred to as the Supreme Court ); Whereas the constitutional duty of the Senate of providing advice and consent on nominees to be a justice of the Supreme Court is one of the most important and solemn responsibilities of the Senate; Whereas the Senate has taken action on every pending nominee to fill a vacancy on the Supreme Court in the last 100 years; Whereas the Senate has confirmed 13 justices of the Supreme Court in the month of September, including Chief Justice John Roberts and Justice Antonin Scalia; Whereas there has never been a time in history when an elected President has been denied the ability to fill a Supreme Court vacancy, by and with the advice and consent of the Senate, prior to the election of the next President; Whereas the Senate has confirmed more than a dozen justices of the Supreme Court in Presidential election years, including 5 in the last 100 years; Whereas the Senate has confirmed justices of the Supreme Court in election years in which the executive and legislative branches of the Federal Government were divided between 2 political parties, including confirming Associate Justice Anthony Kennedy in 1988; Whereas the Committee on the Judiciary of the Senate has never denied a hearing to a nominee to be a justice of the Supreme Court since the committee began holding public confirmation hearings for such nominees in 1916; Whereas the Committee on the Judiciary of the Senate has a long tradition of reporting nominees to be a justice of the Supreme Court for consideration by the full Senate, even in cases in which the nominee lacked the support of a majority of the committee, including the nominations of Associate Justice Clarence Thomas in 1991 and Robert Bork in 1987; Whereas the Federal Judiciary is a coequal branch of the Federal Government and the Supreme Court serves an essential function resolving questions of law that affect the economy and people of the United States and the protection of the United States and its communities; Whereas forcing the Supreme Court to function with only 8 sitting justices has created several instances, and risks creating more instances, in which the justices are evenly divided as to the outcome of a case, preventing the Supreme Court from resolving conflicting interpretations of the law from different regions of the United States and thereby undermining the constitutional function of the Supreme Court as the final arbiter of the law; Whereas the Supreme Court recusal policy adopted in 1993 and signed by Chief Justice William H. Rehnquist, Associate Justices John Paul Stevens, Antonin Scalia, Sandra Day O’Connor, Anthony Kennedy, Clarence Thomas, and Ruth Bader Ginsburg, and later adopted by Chief Justice John Roberts, stresses that even one unnecessary recusal impairs the functioning of the Court and that needless recusal deprives litigants of the nine Justices to which they are entitled, produces the possibility of an even division on the merits of the case, and has a distorting effect on the certiorari process, requiring the petition to obtain (under our current practice) four votes out of eight instead of four out of nine ; Whereas since 1975, the average number of days from nomination to confirmation vote for a nominee to be a justice of the Supreme Court has been 70 days; Whereas the vacancy on the Supreme Court caused by the death of Associate Justice Antonin Scalia arose on February 13, 2016, and the days since the occurrence of that vacancy now number more than 200 days; and Whereas, on March 16, 2016, President Obama nominated Merrick B. Garland, Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the Supreme Court vacancy caused by the death of Associate Justice Antonin Scalia: Now, therefore, be it

1. Short title This resolution may be cited as the No Vote No Recess Resolution . 2. Prohibiting adjournment or pro forma sessions until action on nominee to Supreme Court (a) Prohibition During the period beginning on September 27, 2016, and ending on the last day of the 114th Congress, the Senate shall not adjourn, remain adjourned, or recess for a period of more than 2 days and shall not convene solely in a pro forma session unless, by the date on which the period of adjournment begins or the date of the pro forma session, the Senate has taken action on any nomination made by the President for a position as a justice of the Supreme Court of the United States by— (1) holding a hearing on the nomination in the Committee on the Judiciary of the Senate; (2) holding a vote on the nomination in the Committee on the Judiciary of the Senate; and (3) holding a confirmation vote on the nomination in the full Senate. (b) Adjourning and recessing During the period beginning on September 27, 2016, and ending on the date on which the requirements under paragraphs (1), (2), and (3) of subsection (a) are met— (1) a motion to adjourn or to recess the Senate, or any resolution or order of the Senate including a provision that the Senate adjourn at a time certain, shall be decided by a yea-or-nay vote, and agreed to upon an affirmative vote of two-thirds of the Senators voting, a quorum being present; (2) if a quorum is present, the Presiding Officer shall not entertain a request to adjourn or recess the Senate by unanimous consent or to vitiate the yeas and nays on such a motion by unanimous consent; and (3) if the Senate adjourns due to the absence of a quorum, the Senate shall reconvene 2 hours after the time at which it adjourns and ascertain the presence of a quorum. (c) No suspension of requirements The Presiding Officer may not entertain a request to suspend the operation of this resolution by unanimous consent or motion. (d) Consistency with senate emergency procedures and practices Nothing in this resolution shall be construed in a manner that is inconsistent with S. Res. 296 (108th Congress) or any other emergency procedures or practices of the Senate.