[Congressional Record Volume 162, Number 65 (Wednesday, April 27, 2016)]
[Senate]
[Pages S2487-S2488]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF MERRICK GARLAND
Mr. LEAHY. Mr. President, yesterday I had the honor of speaking at an
event hosted by the Edward M. Kennedy Institute for the U.S. Senate on
this body's role in considering Supreme Court nominees. The institute
is a wonderful organization ``dedicated to educating the public about
the important role of the Senate in our government.'' My friend Ted
Kennedy loved the Senate and worked hard every day here to improve the
lives of the people of Massachusetts and the people of America. I thank
Vicki Kennedy for all of her efforts to build the institute. She has
also continued the Kennedy legacy by working to advance medical
research and health care for all Americans. I was honored by her
invitation to speak at the event.
The institute's event was held on the important and timely issue of
the Senate's constitutional role in providing advice and consent on
nominees to the Supreme Court. As Senator Kennedy once said, ``Few
responsibilities we have as Senators are more important than our
responsibility to advise and consent to the nominations by the
President to the Supreme Court.'' Ted understood the momentous nature
of Supreme Court nominations, as well as the Senate's undeniable and
irreplaceable constitutional role in providing advice and consent on
the President's nominees.
And the Senate Judiciary Committee, on which Senator Kennedy and I
served together for years, plays a singularly important role in
considering nominees to serve in our Federal judiciary. But that
critical role has been abdicated by the Senate Republicans'
unprecedented decision to deny any process to Chief Judge Merrick
Garland, who has been nominated to the Supreme Court.
In the last 100 years since public confirmation hearings began in the
Judiciary Committee for Supreme Court nominees, the Senate has never
denied a nominee a hearing and a vote. No nominee has been treated the
way Senate Republicans are treating Chief Judge Garland. Even when a
majority of the Judiciary Committee did not support a nominee, the
committee still reported out the nomination for a vote on the Senate
floor. This allowed all Senators to exercise their duty to consider the
nominee.
In fact, when I became chairman of the Judiciary Committee in 2001
during the Bush administration, I and Senator Hatch--who was then the
ranking member--memorialized how the committee would continue in this
tradition to consider President George W. Bush's Supreme Court
nominees. In a letter to all Senators, Senator Hatch and I wrote, ``The
Judiciary Committee's traditional practice has been to report Supreme
Court nominees to the Senate once the Committee has completed its
considerations. This has been true even in cases where Supreme Court
nominees were opposed by a majority of the Judiciary Committee.''
Senator Hatch and I agreed to that. And then-Majority Leader Trent Lott
agreed, too, saying this back in 2001: ``the Senate has a long record
allowing the Supreme Court nominees of the President to be given a vote
on the floor of the Senate.'' We all agreed to this because that is
what we in the Senate have done for a century, in an open and
transparent manner, allowing the American people to see us doing our
work.
This is exactly what the Judiciary Committee should be doing this
very day. It has now been 42 days since Chief Judge Merrick Garland was
nominated to the Supreme Court. If we follow the average confirmation
schedule for Supreme Court nominees over the last 40 years, the
Judiciary Committee should be convening a hearing today on Chief Judge
Garland's nomination. The late Justice Scalia, whom Chief Judge Garland
would replace on the Court, received a hearing 42 days after his
nomination. And Democrats were in charge when the Senate last voted on
a Supreme Court nominee in an election year when Justice Anthony
Kennedy was confirmed in 1988. Justice Kennedy received a hearing in
the Judiciary Committee just 14 days after President Reagan nominated
him. Had he been nominated at the same time as Chief Judge Garland, his
hearings would already have been completed.
Last month, the Kennedy Institute released a national poll that
showed just 36 percent of Americans know that the Senate confirms
Supreme Court nominees. Our response as Senators to this unfortunate
fact should not be to deny Chief Judge Merrick Garland a public hearing
and a vote, breaking 100 years of Senate tradition and failing to do
our jobs as Senators. Instead, our response should be to engage with
the American people and to show them through our actions that the
Senate can hold up its part of the constitutional framework.
And although many Americans may not be able to tell you that the
Senate confirms Supreme Court nominees, a solid majority of the
American public does know--by a 2-to-1 margin--that Chief Judge Garland
deserves to have a hearing. That strong majority of the public is
telling us that the Senate should show up for work and carry out
[[Page S2488]]
its constitutional duty by holding a hearing for Chief Judge Garland.
We are hearing that call from so many around the country, including
historians, faith groups, civil rights organizations, and legal
leaders. In an op-ed yesterday, the president of the Vermont Bar
Association, Jennifer Emens-Butler, and others, including a former
president of the American Bar Association, made clear that Republicans'
obstruction of Chief Judge Garland's nomination undermines the rule of
law. They wrote: ``As leaders in the legal profession, we are committed
to protecting the rule of law. Thus, we cannot remain silent as the
Senate refuses to consider Garland. This level of obstructionism is
unprecedented in American history and undermines the rule of law, the
very foundation on which this great nation was built.'' I ask unanimous
consent that a copy of this op-ed be printed in the Record following my
remarks.
Some Republican Senators have claimed that their unprecedented
obstruction against Chief Judge Garland is based on ``principle, not
the person.'' There is no principle in refusing to confirm Supreme
Court nominees in election years, as the Senate has done over a dozen
times, most recently for President Reagan's last nominee to the Court.
Furthermore, we have seen Republican Senators and outside interest
groups attack Chief Judge Garland's judicial record, but then refuse to
allow him the chance to respond at a public hearing. This is not
principled, it is not fair, and it is not right.
To deny Chief Judge Garland a public hearing and a vote would be
truly historic--but that is not the kind of history the Senate should
be proud of. Over the more than 40 years I have served in the Senate, I
recall times when the consideration of Supreme Court nominees was
controversial.
But in every one of those instances, the nominee received a public
hearing and a vote. We did not avoid doing our jobs simply because it
was hard.
We must remember why we are here in the United States Senate. We are
all here to serve the American people by carrying out our sworn oaths
to uphold the Constitution. Protection of our enduring constitutional
system requires that we hold our constitutional duties as Senators
above the partisan politics of the now. I hope that Republicans will
soon reverse course and put aside their obstruction to move forward on
Chief Judge Garland's nomination.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From The Hill, Apr. 26, 2016]
Senate's Refusal To Move on Garland Continues To Undermine Rule of Law
(By Monte Frank, James R. Silkenat, and Jennifer Emens-Butler)
A month ago, Sen. Richard Blumenthal (D-Conn.) and Monte
Frank (one of the co-authors of this piece) warned that the
Senate's refusal to consider President Obama's nomination of
Chief Judge Merrick Garland to the U.S. Supreme Court would
undermine the rule of law. Despite this warning, the Senate
Judiciary Committee has continued its blocking tactics and
has rebuffed calls for hearings and a vote. As leaders in the
legal profession, we are committed to protecting the rule of
law. Thus, we cannot remain silent as the Senate refuses to
consider Garland. This level of obstructionism is
unprecedented in American history and undermines the rule of
law, the very foundation on which this great nation was
built.
The rule of law is the restriction of the arbitrary
exercise of power by subordinating such exercise to well-
defined and established laws. As discussed in the earlier
piece with Blumenthal, in the United States, the rule of law
is grounded in our Constitution, which unambiguously lays out
the process for filling vacancies to the Supreme Court.
Article II, Section 2 of the Constitution states the roles
the president and the Senate must play in the appointment
process: ``The President . . . shall nominate, and by and
with the Advice and Consent of the Senate, shall appoint . .
. Judges of the Supreme Court.'' The Constitution is also
clear that the president's term is four years, not three or
three-and-one-fourth years.
Now that Obama has fulfilled his constitutional
responsibility and made a nomination promptly to fill the
current Supreme Court vacancy, the Constitution requires the
Senate to likewise fulfill its responsibility to consider and
act promptly on the nominee. The Senate needs to move forward
by holding meetings, conducting hearings and ultimately
taking a vote.
While Garland is preeminently qualified, having served as
chief judge of the United States Court of Appeals for the
District of Columbia Circuit since 1997, whether the Senate
ultimately confirms him is an entirely different question
than whether the Senate should even consider him. The current
arbitrary exercise of power to deny Garland a hearing and a
vote is the kind of abuse the rule of law is designed to
protect us from. If the well-defined and established
provisions of the Constitution are permitted to be willfully
ignored, then the rule of law will be undermined.
In a letter to the leadership of the Senate, 15 past-
presidents of the American Bar Association emphasized their
utmost respect for the rule of law and the ``need for the
judicial system to function independently of partisan
influences. The founding fathers understood this as well, and
structured the constitutional system of government to
insulate the judiciary from changing political tides. The
stated refusal to fill the ninth seat of the Supreme Court
injects a degree of politics into the judicial branch that
materially hampers the effective operation of our nation's
highest court and the lower courts over which it presides.''
The Senate should follow the example set by President
Reagan and then-Senate Judiciary Committee Chair Joe Biden
(D-Del.) in considering Justice Anthony Kennedy, who was
confirmed in an election year. Reagan urged the nation to
``join together in a bipartisan effort to fulfill our
constitutional obligation of restoring the United States
Supreme Court to full strength.'' He asked the Senate for
``prompt hearings conducted in the spirit of cooperation and
bipartisanship.'' Biden responded: ``I'm glad the President
has made his choice. We will get the process under way and
move as rapidly as is prudent. We want to conduct the
committee's review with both thoroughness and dispatch.''
Sen. Chuck Grassley (R-Iowa) was also on the Senate Judiciary
Committee at that time. Now that he is the chair, he should
follow the example set by Reagan and Biden.
The Senate's refusal to process the nomination has already
impacted the lives of everyday people throughout the United
States. If lower court decisions are confirmed simply because
of a tie in the Supreme Court, as has already occurred and
will continue to occur until the vacancy is filled, then the
court will not have created precedent and the lower courts
will not be able to rely on those decisions. Open questions
of law on significant issues will continue to be left
unanswered. To fill this void, the Senate must move forward
on a bipartisan basis with meetings and hearings,
consideration of and a timely vote on the nominee.
President Reagan's words in 1988 on the confirmation of
Justice Kennedy are just as applicable today: ``The Federal
Judiciary is too important to be made a political football. I
would hope, and the American people should expect . . . for
the Senate to get to work and act.'' We urge the Senate to
put partisan politics aside for the good of the American
people and to avoid undermining the rule of law.
____________________