[Congressional Record Volume 162, Number 60 (Tuesday, April 19, 2016)]
[Senate]
[Pages S2137-S2139]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  OKLAHOMA CITY BOMBING ANNIVERSARY AND NOMINATION OF MERRICK GARLAND

  Mrs. MURRAY. Madam President, I come to the Senate floor to once 
again urge my Republican colleagues to do what they are elected to do: 
listen to their constituents and give Judge Garland the fair 
consideration he deserves.
  As some of my colleagues have already noted, today marks 21 years 
since the Oklahoma City bombing, an attack that shocked the world and 
took 168 innocent lives. I had the honor of meeting with an individual 
last week who was not only involved in the immediate aftermath of this 
terrible attack but who went above and beyond to make sure justice was 
served on behalf of those who lost their lives.
  Judge Merrick Garland, the President's nominee for the Supreme Court, 
was at the scene of the bombing within 2 days. With debris from the 
Alfred P. Murrah Federal Building still smoldering in the streets, 
Judge Garland was helping first responders and working with local law 
enforcement.
  As a top official in the Justice Department, he led a massive 
investigation of the bombing and supervised the prosecution of Timothy 
McVeigh. He did all of that, even if it meant more work and more time 
away from his family, with incredible delicacy and thoroughness. He 
called his work for the Justice Department following the Oklahoma City 
bombing the most important thing he has ever done in his life.
  As we remember those who were lost on that day in 1995, and in light 
of last week being National Crime Victims' Rights Week, we remember how 
Judge Garland honored those victims with his dedicated service. Judge 
Garland not only did his job with a great deal of heart, working with 
families who had lost loved ones, but with the vigor to demand that 
justice be served. His fairness and diligence earned him praise from 
Members of both parties, from victims' families and law enforcement 
officers, and even from the lead lawyer defending McVeigh.
  A person like that, driven by the desire to help people and serve the 
public, is someone who deserves fair consideration by all of us in the 
U.S. Senate. Unfortunately, that is not what is happening right now. We 
are 66 days into the Supreme Court vacancy, and so far Republican 
leaders are still refusing to do their jobs. They will not say they are 
opposed to Judge Garland. They are refusing to even live up to their 
constitutional responsibility and consider him. That kind of pure 
obstruction and partisanship is absolutely wrong. People across the 
country are not going to stand for that.
  Last week I met with Judge Garland and talked through his background, 
his experiences, his philosophy, his judicial philosophy. What I found 
out--and it would be difficult for any right-minded person not to come 
to this conclusion after meeting with him--is that Judge Garland is 
highly passionate, he is highly respected, and highly qualified to 
serve on the U.S. Supreme Court.
  I am very glad some Republicans have started meeting with him. That 
is a great first step, but it cannot be the last step. Families across 
this country deserve to hear from Judge Garland in a Judiciary 
Committee hearing, under oath, and in public, and then he should get a 
vote where every Senator will have the opportunity to do their job and 
weigh in.
  If any Member doesn't think Judge Garland should serve on the highest 
Court in the land, they should feel free to vote against him, but give 
him a

[[Page S2138]]

hearing, give him a vote, and stop this partisanship and obstruction. 
Evaluating and confirming Supreme Court Justices is one of the most 
important roles we have in the United States, and it is this issue that 
actually pushed me to run for the Senate in the first place.
  In 1991 I was a State Senator, a former school board member, and a 
mom. Similar to so many people across the country back then, I watched 
the Clarence Thomas confirmation hearings in frustration over how the 
nominee wasn't pushed on the issues that I and so many others thought 
were so important to the future of our country. I saw how a woman who 
came to talk about her experiences, Anita Hill, was treated by this 
Senate. I decided then and there to run for the U.S. Senate, to give 
Washington State families like mine a voice in this process.
  I have had the opportunity to use that voice in the Senate and to 
make sure Washington State families had a seat at the table in Supreme 
Court nominations and confirmations over the years. I voted to support 
some of the candidates, including the Chief Justice nominated by a 
Republican President. I voted to oppose others, but I always thought it 
was important that a nominee got the consideration he or she deserved, 
and I always worked to make sure the people I represented got their 
questions answered as best as I could and that they could have a view 
into the process that should be above partisanship and politics.
  If Republicans continue to play election-year politics and continue 
to refuse to do their jobs, my families in Washington State will not 
have a voice. Families across America will not have a voice. The tea 
party gridlock and dysfunction that has dominated too much of our work 
in Congress will have claimed another victory. That is unacceptable.
  Once again, I am on the floor to call on my Republican colleagues to 
do your job; meet with Judge Garland, hold a hearing, and give him a 
vote. We owe that to our constituents. It is our constitutional 
responsibility, and we should get it done.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Madam President, today, the 19th, marks the anniversary 
of one of the worst terrorist attacks ever to hit the United States. On 
April 19, 1995, at 9:02 a.m., a rented truck filled with fertilizer and 
diesel fuel exploded in front of the Alfred P. Murrah Federal Building 
in Oklahoma City. The impact of the blast was devastating. One-third of 
the Federal Building was destroyed, and 168 men, women, and children 
lost their lives, with several hundred seriously wounded. At that time, 
it was the deadliest terror attack ever to take place on American soil.
  The Oklahoma City bombing shocked America. In the days after April 
19, Americans mourned the lives which were lost and called for those 
who committed this evil act to be brought swiftly to justice.
  It was in this context that the U.S. Department of Justice sent one 
man to head this investigation and prosecution. His name is Merrick 
Garland. Merrick Garland was the Principal Associate Deputy Attorney 
General. He had volunteered to lead this investigation, telling his 
boss, Deputy Attorney General Jamie Gorelick, he had to do it.
  Garland would stay in Oklahoma City for a long period of time. By all 
accounts, he worked around the clock, coordinating the efforts by law 
enforcement to gather evidence, building the case against Timothy 
McVeigh and Terry Nichols. Every step along the way, Merrick Garland 
was meticulous. He made sure no corners were cut in the investigation 
or the prosecution. There was so much at stake.
  One of the roles Merrick Garland took most seriously was to be in 
touch with the survivors and the victims' families, keeping them 
informed, keeping them in the loop. He carried with him at all times a 
list of the names of the victims so he would never forget the historic 
importance of his assignment.
  Merrick Garland would later call his work in Oklahoma City ``the most 
important thing I have ever done in my life.'' His work helped bring 
the perpetrators of this terrorist attack to justice and earned him the 
respect and gratitude of those he worked with and served. That is the 
definition of public service.
  The record is clear that Merrick Garland has always done his job 
diligently and conscientiously. Throughout his decades in public 
service at the Justice Department and later on the Federal bench, Judge 
Garland has earned a reputation as a workhorse who leaves no task 
unfinished.
  It is instructive to hear what his former law clerks say about him. 
Several dozen of them recently sent a letter to the Senate. Here is 
what they said about Judge Garland: ``Unrelenting work ethic.'' They 
said Judge Garland ``treated every matter before him with the same care 
and attention to detail, whether it affected the national interest or a 
single ordinary life.''
  Judge Garland's devotion to his work is admired by many. This is a 
man who has received extraordinary praise because he did his job and 
did it well. It should come as no surprise, when President Barack Obama 
announced that Merrick Garland was his choice to be the nominee to fill 
the vacancy on the Supreme Court, he dwelled on this experience in 
Oklahoma City.
  Unfortunately, Merrick Garland faces a historic blockade in the 
Senate. The Senate has never in its history denied a hearing to a 
Presidential nominee to fill a vacancy on the Supreme Court. It has 
never ever happened before.
  The death of Antonin Scalia, about 2 months ago, led to an almost 
immediate announcement by the Republican Senate leader, Senator 
McConnell, that there would be no consideration, no hearing, and no 
vote for any nominee sent by President Barack Obama to this U.S. 
Senate. Senator McConnell went further to say that he would not even 
meet with the nominee.
  It has been more than a month since Judge Garland was nominated to 
the Supreme Court. It has been over 2 months now since Supreme Court 
Justice Antonin Scalia has passed. Why has the Republican majority 
leader decided to ignore the precedent of history? Why is he turning 
his back on our Constitution? That Constitution says explicitly, 
article II, section 2: The President of the United States shall appoint 
a nominee to fill a vacancy on the Supreme Court.
  Our Founding Fathers understood that you can play politics with 
vacancies, and they didn't want that to happen. So the President met 
his constitutional obligation but, sadly, this U.S. Senate has refused 
to meet its constitutional responsibility to advise and consent on that 
nominee. It is not automatic. There is no guarantee that any nominee 
sent by the President would be approved by the Senate, but it is our 
responsibility to ask the questions of that nominee.
  People across the United States have a right to hear this nominee, 
Merrick Garland, under oath answer important questions about whether he 
is prepared to serve on the Supreme Court and, if he serves, whether he 
would bring integrity to that appointment.
  We have extended that courtesy to every Presidential nominee to fill 
a vacancy on the Supreme Court until this moment. The argument that is 
made on the other side of the aisle is that we have to go through an 
election--we have an election coming up--and let the American people 
decide, not the Senate. Let the American people decide, whether it will 
be a Democratic President or a Republican President.
  What my friends on the other side of the aisle ignore is that when 
President Barack Obama was reelected, he was not elected to a 3-year 
term, he was elected to a 4-year term. He is the President of the 
United States this year. He has the power of that office this year not 
because I willed it--although I certainly did--but because by a 
plurality of 5 million votes the American people made that decision. 
Five million votes were cast for Barack Obama over Mitt Romney. The 
decision of the American people was that this President shall govern 
not for 3 years, not for 3 years and 2 months, but for 4 years.

[[Page S2139]]

  A lot of people say: As a Democrat in the Senate, it is easy for you 
to say that Republicans should treat this Democratic President a little 
better. What if the shoe were on the other foot?
  Well, we have a chance to take a look back and see exactly what 
happened when the roles were reversed. In 1988, during the last year of 
Republican President Ronald Reagan's term, we had a vacancy on the 
Supreme Court. He sent his nominee to the Senate, which was then 
controlled by the Democrats. Did we have an announcement from the 
Senate Democratic leadership that we will not consider any nominee sent 
by a Republican President in the last year of his term? Did we have an 
announcement by the Democratic leaders in the Senate that we won't even 
meet with the nominee? Exactly the opposite occurred. Anthony Kenney 
was given the opportunity to have a hearing, where he answered 
questions under oath, and had a vote which confirmed him on the Supreme 
Court. A Republican President, during the last year of his Presidency, 
filled a vacancy on the Supreme Court with the cooperation of a 
Democratic majority in the Senate.
  The tables are turned now. We have a Democratic President with a 
Republican-controlled Senate, and they are ignoring the history and 
precedent of the Senate and they plan on ignoring this nominee. There 
is no basis in the Constitution for the position taken by the Senate 
Republicans. This is an unprecedented obstruction of a nomination to 
fill a key Supreme Court vacancy.
  Yesterday I was across the street. It was the second time I have been 
honored to be included in a very small audience of about 250 people to 
listen to the oral arguments in a case before the Supreme Court on a 
critical decision that will affect the lives of millions of people in 
the United States. I looked up to the chairs on the Supreme Court, and 
obviously one was vacant. There are only eight Justices. If this Court 
on this case--or others--cannot resolve it with a majority and has a 
vote of 4 to 4 on a case, it invites confusion and chaos in one of the 
most critical branches of our government. It is confusion and chaos 
that can be avoided if the Senate Republicans simply do their 
constitutional duty: advise and consent.
  Give Merrick Garland a hearing under oath so the American people can 
draw their own conclusions about whether this man is the right person 
for the Supreme Court, and then let's have a vote on the floor. In the 
past, even when the Senate Judiciary Committee rejected a Presidential 
nominee for the Supreme Court, the committee sent that nomination to 
the floor anyway for a vote so that the whole Senate could speak to the 
worthiness of that nominee. Merrick Garland deserves nothing less.
  The Senate Republicans refusal to do their job under the Constitution 
has real-world consequences. Recently the solicitor general of 
Illinois, Carolyn Shapiro, came to the Capitol to talk to the Senators 
about how the vacancy on the Supreme Court is actually hurting States 
by leaving important legal questions unresolved.
  Madam President, I ask unanimous consent that her speech be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Statement on the Importance of a Nine-Member Supreme Court for State 
                          and Local Government

[Before the Senate Democratic Steering and Outreach Committee, April 6, 
2016, Carolyn E. Shapiro, Solicitor General of Illinois, Office of the 
                       Illinois Attorney General]

       Good morning. Thank you very much for the opportunity to 
     talk with you about the importance of a fully functional 
     Supreme Court to state and local governments.
       My name is Carolyn Shapiro, and I am the Illinois Solicitor 
     General. I am also a tenured faculty member at IIT Chicago-
     Kent College of Law where I founded the Institute on the 
     Supreme Court of the United States and where my research and 
     scholarship focuses largely on the Supreme Court as an 
     institution.
       State and local governments regularly rely on the Supreme 
     Court to provide clarity and certainty in numerous areas of 
     law, many of which do not involve the headline-grabbing, hot-
     button issues we hear about on the news.
       But in some of these areas, the risk of an equally divided 
     court is real, and a Supreme Court unable to provide clarity 
     and certainty would have very real and harmful effects.
       I could talk about a variety of different areas of law, but 
     my focus here will be on the Fourth Amendment. The Fourth 
     Amendment of course regulates what law enforcement can and 
     cannot do in investigating crime and it protects the privacy 
     interests of the citizenry. It is crucial for law enforcement 
     to know what the rules are and it is crucial for the 
     citizenry to have confidence that law enforcement is 
     following the rules and doing so uniformly.
       These things cannot happen without the Supreme Court being 
     able to resolve some of the difficult and contested issues in 
     this area of law.
       In the past three years, the Supreme Court has decided at 
     least eight Fourth Amendment cases by close votes, and in 
     several of those cases, Justice Scalia was in a five-member 
     majority. In other words, without nine justices, the court 
     might well have been unable to resolve the issues presented 
     in those cases, leading to ongoing uncertainty. And some of 
     those cases, as often happens in the Fourth Amendment area, 
     have created new areas of uncertainty that must be resolved--
     but that may require a nine-member court to do so.
       I will briefly mention two such areas. In 2013, the Supreme 
     Court decided Florida v. Jardines, in which Justice Scalia 
     wrote the opinion on behalf of five justice majority. 
     Jardines held that when police bring a drug dog onto the 
     front porch of a single family home, that constitutes a 
     search for purposes of the Fourth Amendment.
       This holding has led to new questions. Earlier this year, 
     the Illinois Supreme Court held that Jardines extends to a 
     drug sniff outside an apartment door in the common area of a 
     building. But in similar cases around the country, other 
     courts have reached different conclusions. Not only can this 
     lead to inconsistent law from state to state, but even within 
     a jurisdiction. A search held constitutional in state court 
     might be held unconstitutional in federal court in the same 
     state. This kind of uncertainty is untenable.
       A second issue involves the implications of the 2013 case 
     of Missouri v. McNeely in which Justice Scalia joined a five-
     member majority to hold that the natural dissipation of 
     alcohol in the blood does not in and of itself create exigent 
     circumstances allowing the police to obtain a blood test 
     without a warrant. This term the court is poised to hear a 
     case, Birchfield v. North Dakota, about the implications of 
     some of McNeely's reasoning for state statutes that 
     criminalize the refusal to submit to a blood or breath test 
     when pulled over for a DWI. Illinois does not have such a 
     statute, but we do have a statute making refusal to submit to 
     such a test grounds for the suspension of a license. And a 
     case challenging that statute is apparently being held by the 
     Supreme Court pending the result in Birchfield. So if the 
     court is unable to resolve Birchfield because it is equally 
     divided, or is unable to resolve our case, should the Court 
     later decide to hear it, those statutes will remain under a 
     constitutional cloud and neither law enforcement nor state 
     legislatures will know the scope of their authority in this 
     area.
       There are of course other areas of law I could discuss, but 
     the point I want to leave you with is that state and local 
     governments, and the citizenry, depend on a functional court 
     to provide clarity and certainty in areas of law that affect 
     government officials and citizens on a daily basis.
       Thank you.

  Mr. DURBIN. As an example, Solicitor General Shapiro pointed out how 
right at this moment numerous States and Federal circuits are governed 
by different standards on important Fourth Amendment search and seizure 
issues. These cases are working their way through the courts, but only 
the Supreme Court can finally resolve the issues. But the Court may be 
unable to do that. A 4-to-4 Court with a tie will not resolve an issue. 
Unless the Senate Republicans do their job, the Supreme Court will be 
stuck with eight members for more than a year.
  I have a trivia question. When was the last time the Senate left a 
vacancy on the Supreme Court for a year or more? During the Civil War. 
It took a war between the States for us to leave a vacancy that long in 
the Court--a vacancy which the Senate Republicans are continuing by 
this obstruction.
  As we reflect on the anniversary of the Oklahoma City bombing, I hope 
my friends on the other side of the aisle will take a step back from 
politics. I hope they will acknowledge that Merrick Garland stepped up 
for this Nation, did the right thing, and proved he could do his job. 
Senate Republicans have no less responsibility. It is time for the 
Senate Republican majority to do its job.
  I yield the floor.
  The PRESIDING OFFICER. The majority whip.

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